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326 U.S. 785

Petition for writ of certiorari to the Circuit Court, Kane County, Illinois, denied.

385 U.S. App. D.C. 38

Opinion for the Court filed by Chief Judge SENTELLE. SENTELLE, Chief Judge: In this consolidated proceeding, M2Z Networks, Inc. (M2Z) challenges two related decisions of the Federal Communications Commission (FCC or Commission). First, it appeals the dismissal of its application for a nationwide, 15-year exclusive license to the 2155-2175 megahertz (MHz) spectrum to provide wireless broadband Internet access. Second, it petitions for review of the denial of its petition for forbearance on that application. Despite the ingenious arguments of petitioner, we affirm the order of the FCC in all respects, dismissing M2Z's application without prejudice and denying its expansive petition for forbearance. I. Background The FCC has designated 130 MHz of spectrum for advanced wireless services, to provide wireless Internet access and other voice and high-speed data services. In re Service Rides for Advanced Wireless. Services in the 2155-2175 MHz Band (NPRM), 22 F.C.C.R. 17,035, 17,039-41 (¶¶ 6-7) (2007). Service rules have been adopted for one 90 MHz range, now called AWS-1. In re Service Rides for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, 18 F.C.C.R. 25,162, 25,163 (¶ 1) (2003). Service rules for a second, 20 MHz, band called AWS-2 have been proposed but not approved. See In re Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, 19 F.C.C.R. 19,263 (2004). In September 2005, the FCC "designated]" the 2155-2175 MHz band "for AWS use," in what came to be called AWS-3. In re Amendment of Part 2 of the Commission's Rules to Allocate Spectrum Below 8 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, Including Third Generation Wireless Systems, 20 F.C.C.R. 15,866, 15,-872 (¶ 9) (2005). Service rules were not proposed for this AWS-3 band until September 2007. See NPRM, at ¶ 1. On May 2, 2006, M2Z Networks filed an application with the FCC for a license to the entire AWS-3 band. Before us, M2Z claims that the band had lain largely fallow since it was first identified by the Commission in 1992 to provide for emerging telecommunications technologies. See In re-Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies (1992 Notice), 7 F.C.C.R. 1542, ¶ 19 (1992). This characterization may not be entirely accurate, as there were 1800 active licenses in the 2155-2175 MHz band in September 2007. NPRM, at ¶ 9. "These incumbents consisted] primarily of Fixed Microwave Service (FS) and Broadband Radio Services (BRS) licensees, who are subject to relocation by emerging technology (ET) licensees (including future AWS-3 licensees)." Id. Though M2Z may imply that the Commission has dragged its feet, the Commission counters that it has long "recognize[d]" the difficulty of replacing old licensees with emerging technology licensees. 1992 Notice, at ¶ 19. Because the incumbents "provide important and essential services," the Commission proposed to "pursue this reallocation in a manner that w[ould] minimize disruption of the existing . operations." Id. M2Z's plan was to deliver basic wireless broadband access to most of the country free of charge, ultimately making money by charging for premium service. According to the petitioner, for the plan to work, it needed an exclusive, nationwide license to the entire segment for 15 years. In September 2006, M2Z amended its application with a petition for forbearance under 47 U.S.C. § 160(c) and 47 C.F.R. § 1.53. M2Z asked the Commission to forbear from applying 47 C.F.R. § 1.945(b), (c), and "any other rule, provision of the Act, or Commission policy . to the extent such rules, statutory provisions, or policies [would] impede the acceptance and grant" of its application. In January 2007, the FCC found M2Z's application acceptable for filing, without assessing the merits. Typically, applications for broadcast licenses are processed according to preexisting service rules. But, because there were no service rules for the proposed AWS-3 band, the Commission accepted the application "pursuant to [its] general statutory authority" under 47 U.S.C. § 309(a). Upon accepting the application for filing, the FCC invited petitions to deny the application, and additional applications for the same band of spectrum. The Commission received voluminous comments, and six new applicants sought licenses for the spectrum. On August 31, 2007, the Commission dismissed without prejudice all applica tions for access to the 2155-2175 MHz band, denied M2Z's petition for forbearance, and found "that the public interest is best served by first seeking public comment on how the band should be used and licensed." In re Applications for License and Authority to Operate in the 2155-2175 MHz Band (Order), 22 F.C.C.R. 16,568, 16,564 (¶ 1) (2007). II. Analysis In this case, we review the FCC's application of its own procedures when granting licenses and its interpretation of related statutory provisions. In particular, we ask whether the Commission was reasonable in denying M2Z certain procedural advantages in its quest for a bandwidth license. Before proceeding to the merits, we will briefly address the Commission's contention regarding administrative exhaustion. The FCC claims that we lack jurisdiction over seven distinct arguments advanced by M2Z. The Administrative Procedure Act (APA) does not pose a barrier to jurisdiction because judicial exhaustion requirements under the APA are prudential only. See Darby v. Cisneros, 509 U.S. 187, 146, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). But the FCC contends that 47 U.S.C. § 405 bars our consideration of any "question[ ] of fact or law upon which the Commission . has been afforded no opportunity to pass." 47 U.S.C. § 405(a). "Ordinarily," however, "disgruntled parties are not required to seek administrative reconsideration before challenging a Commission order in this court, and exceptions to this general rule are to be construed narrowly." Nat'l Ass'n for Better Broad. v. FCC (NABB), 830 F.2d 270, 274 (D.C.Cir.1987). Most importantly, governing precedent dictates that section 405(a) constitutes "an exhaustion requirement, rather than . a jurisdictional prerequisite." Petroleum Commc'ns, Inc. v. FCC, 22 F.3d 1164, 1170 (D.C.Cir.1994). Additionally, in Freeman Engineering Associates, Inc. v. FCC, we recognized that section 405 "contains the traditionally recognized exceptions to the exhaustion doctrine," like futility. 103 F.3d 169, 183 (D.C.Cir.1997) (quoting Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C.Cir.1996)). The exhaustion requirement ensures that the Commission has the opportunity to pass on all issues in the case before the issues are presented for review by the court. Importantly, we construe each of M2Z's objections to address the substantive content of the FCC's legal conclusions that would necessarily have been implicated in their application and petition, rather than merely to protest procedural imperfections. Ordinarily petitioners must give agencies an opportunity to cure "technical defeet[s]" before seeking review by this court. NABB, 830 F.2d at 274. Because we conclude that the Commission has "had an opportunity to pass" on each of M2Z's arguments that we discuss today, we may proceed to the merits. A. Forbearance Under 17 U.S.C. § 160 We review the FCC's interpretation of its statute with deference under the familiar framework of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See EarthLink, Inc. v. FCC, 462 F.3d 1, 7 (D.C.Cir.2006). In addition, the Commission's judgments on the public interest are "entitled to substantial judicial deference." FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981). In 47 U.S.C. § 160, Congress provided that "the Commission shall forbear from applying any regulation or any provision" of the relevant statute "if the Commission determines that . forbearance from applying such provision or regulation is con sistent with the public interest." 47 U.S.C. § 160(a)(3). M2Z petitioned the Commission to forbear from applying 47 C.F.R. § 1.945(b) and (c). Section 1.945(b) requires the Commission to wait 31 days before acting on applications for licenses not subject to competitive bidding. 47 C.F.R. § 1.945(b). Section 1.945(c) requires, among other things, that all license applications granted without a hearing must be from applicants who are "legally, technically, financially, and otherwise qualified." 47 C.F.R. § 1.945(c)(2). Therefore, M2Z argues that the Commission should have granted its petition to for forbear from two provisions. The first provision would have required the FCC to wait 31 days after it accepted M2Z's application for filing; this was mooted months before the Order issued. The second would have required the FCC to hold a hearing unless it could officially notice M2Z's qualifications. 1. Forbearance and the Public Interest M2Z also petitioned the Commission, in a strikingly broad and inclusive request, to forbear from applying "any other rule, provision of the Act, or Commission policy . to the extent such rules, statutory provisions, or policies [would] impede the acceptance and grant" of its application. (Emphasis added.) Under the statute, the Commission should forbear from applying those rules if it determines that forbearance "is consistent with the public interest." 47 U.S.C. § 160(a)(3). M2Z, however, makes the startling assertion that the Commission should forbear from applying those rules if M2Z's application "is consistent with the public interest." It argues that, because both statutory provisions discuss "the public interest," the FCC may only make one inquiry to answer the independent questions posed by the two sections. Section 309(a) announces the standard under which the Commission is to consider applications — "whether the public interest, convenience, and necessity will be served by the granting of such application." 47 U.S.C. § 309(a). Section 160(a)(3) announces the standard under which the Commission is to consider forbearing from applying its rules — whether "forbearance from applying such provision or regulation [would be] consistent with the public interest." 47 U.S.C. § 160(a)(3). As M2Z frames the issue, "[s]ince M2Z requested forbearance from any laws or rules that stood in the way of granting its application, the questions presented to the Commission merged into one: Would it be in the public interest to grant M2Z's application?" This argument obscures the difference between the questions. The first asks whether granting an application is in the public interest; the second asks whether forbearing from subjecting applications to certain regulations is in the public interest. They might both be true, but the truth of the first does not imply the truth of the second. Because M2Z misconstrues the issue, it is naturally dissatisfied with the resolution. It claims that the FCC was required to walk through its application, and answer each of its proposed public interest claims on the merits. It therefore accuses the Commission of "deciding not to decide," an approach we rejected in AT & T, Inc. v. FCC, 452 F.3d 830 (D.C.Cir.2006). In AT & T, the FCC denied a forbearance request asking it to "forbear from applying Title II common carrier regulation to IP platform services." Id. at 832. The Commission reasoned that it could not rule on the forbearance request because it "had yet to determine whether common carrier regulations even applied to IP platform services." Id. Although there are some factual parallels to this case, the law is not parallel. We observed in AT & T that the statute "gives the Commission authority to decide only whether 'forbearance . is consistent with the public interest,' not to decide whether deciding whether to forbear is in the public interest." Id. at 836 (quoting 47 U.S.C. § 160(a)(3)). Although the Commission here ultimately chose to undertake a rulemaking, it first decided whether forbearance was in the public interest. It weighed the costs and benefits in the following manner: While [M2Z's] proposed approach! ] may result in the issuance of a license sooner than conforming to established processes, such licensing would come at the expense of establishing a complete record that enables the Commission to consider all of the relevant factors in determining whether to grant a license without a hearing. In short, a potentially speedy but ill-considered licensing process does not serve the public interest. Moreover, as set out in detail below, the various filings made in this proceeding that oppose M2Z's . application ] or propose competing uses of the band support our conclusion that a grant of . th[is] . application ] without adhering to the requirements of Section 1.945 would disserve the public interest. Order, at ¶ 9. The Commission did not refuse to rule on the forbearance request. It ruled, just not the way M2Z wanted it to. 2. Forbearance and Considering Competitive Market Conditions M2Z also contends that the FCC failed to address whether forbearance would promote competitive market conditions, as required by 47 U.S.C. § 160(b). M2Z says both that the Commission's treatment was cursory and that it defined the wrong market in its analysis. The Commission wrote the following: "We observe that the grant of any of the pending applications, by cutting off consideration of a competitive bidding licensing framework and precluding consideration of other potential applicants for this spectrum, would appear to compromise the development of competitive market conditions." Order, at ¶ 10 n. 34. M2Z sought a 15-year monopoly on valuable bandwidth; it should not be surprised that the FCC was terse in its analysis of this proposal's effect on competitive market conditions. M2Z tries to analogize to the reversibly brief treatment given by administrative agencies in Getty v. FSLIC, 805 F.2d 1050 (D.C.Cir.1986), and Missouri Public Service Commission v. FERC, 234 F.3d 36 (D.C.Cir.2000). The petitioner in Getty was able to show that despite "two fleeting references" in the administrative record to a statutorily required factor, there was "no evidence that [the agency] paid any attention" to that factor. Getty, 805 F.2d at 1055, 1056. The agency's order only "contained a boilerplate recitation of the language" required. Id. at 1055. In Missouri Public Service Commission, the agency merely named the factors, and we held that "[a] passing reference . is not sufficient to satisfy the [agency's] obligation to carry out 'reasoned' . decision-making." Mo. Pub. Serv. Comm'n, 234 F.3d at 41. Though not lengthy, the Commission's order in this case was neither a boilerplate recitation of the required language nor a passing reference without any reasoning. The FCC named the factor ("competitive market conditions"), and gave two reasons why the application "would appear to compromise" that factor — namely, by "cutting off consideration of a competitive bidding licensing framework and precluding consideration of other potential applicants for this spectrum." Order, at ¶ 10 n. 34. And, though the Order referred directly to the provider market, rather than the consumer market, it seems clear what the Commission meant. Without scrutinizing and comparing applica tions from various companies, the Commission feared that it would not choose the most efficient provider for this bandwidth. An auction would help it find this ideal provider, so it was not in the public interest to forbear from an auction. In short, the FCC's analysis of the effects of M2Z's breathtakingly broad petition on competitive market conditions was so plainly unobjectionable that it didn't warrant any further discussion by the Commission. B. Considering the Public Interest Under U7 U.S.C. § 157 M2Z next argues that the nature of its project should have earned it preferential treatment under 47 U.S.C. § 157. That section says that "[a]ny person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this chapter shall have the burden to demonstrate that such proposal is inconsistent with the public interest." 47 U.S.C. § 157(a). M2Z argues that its proposal falls within this language because it uses new technologies, combines them in an innovative way, and provides a new service, and that no party has met the burden to show that its proposal is inconsistent with the public interest. In its Order, the Commission said that M2Z proposes "us[ing] technologies that other service providers are already using" and that these technologies "are all proven technologies that have been deployed in other bands." Order, at ¶ 13. It supported this conclusion by noting the "relatively slow speed" of the technologies proposed by M2Z. Id. at ¶ 14. Therefore, the Commission reasoned, it should not be considered a new technology or service. The Commission further noted that, under the statute, it is "expressly exclucle[d]" from having to demonstrate that a proposal is not in the public interest. Id. at ¶ 16; see also id. at ¶ 16 n. 55. Finally, the Commission held that, because of the slow speed and less-than-aggressive expansion schedule, M2Z's proposal was inconsistent with the public interest. Id. at ¶ 15. We begin by accepting the Commission's interpretation regarding the burden-shifting portion of the statute, which, again, reads that "[a]ny person or party (other than the Commission) . shall have the burden." 47 U.S.C. § 157(a) (emphasis added). It is certainly a reasonable interpretation of this statute to say that the Commission does not have to meet any burden. M2Z's only response is to say that the FCC's interpretation removes shifting of the burden from the statute entirely. It argues that 47 U.S.C. § 157(b) calls for the Commission to be a "neutral arbiter" assessing whether a plan's "opponents carry their burden." Therefore, M2Z reasons, the phrase "other than the Commission" prevents the Commission from being a party that could even opine, independently, on whether the proposal is inconsistent with the public interest. Though M2Z's interpretation might be reasonable, that question is not presented in this case. We only need to decide whether the Commission's interpretation was reasonable. See Chevron, U.S.A., Inc., 467 U.S. at 843-45, 104 S.Ct. 2778. M2Z argues that the Commission's interpretation could not be reasonable: because the Commission must always decide in the end, and it may never have the burden shifted against it, the burden may never be shifted, and therefore that portion of the statute is surplusage. But this reasoning is flawed. The statute obviously governs when the Commission is weighing evidence presented by third parties — when, for example, such parties make petitions to deny an application for spectrum. When the Commission evaluates these parties' petitions, the burden is applied against them. And when the Commission is undecided or in equipoise, the burden is never removed, making every word Of the statute count. We therefore hold that it was reasonable for the FCC to conclude that 47 U.S.C. § 157 does not give the Commission the burden of proving that M2Z's proposal was not in the public interest. With this established, the rest of the issue becomes more straightforward. In particular, the parties' technical dispute over whether M2Z's proposal was a new technology or service becomes less important. We need not decide whether the Commission confused orthogonal frequency-division multiple access (OFDMA) with orthogonal frequency-division multiplexing (OFDM) technologies. We also need not decide whether M2Z waived this argument when it wrote that it sought a license "on the basis of the broad range of public interest and consumer welfare benefits ., rather than on the basis of technological innovations alone." And, finally, we need not decide whether M2Z's application is better considered as a new service, because it would be uniquely iree and nationwide, or as an old service, because it would offer wireless broadband Internet access like many other providers. Even assuming that M2Z proposed a new technology or service, we must affirm the Commission's public-interest decision as long as it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This we find easy to do. The Commission found that "the transmission speeds proposed by M2Z [we]re unremarkable compared to other broadband services currently being deployed." Order, at ¶ 14. It further found that "in light of the relatively slow speed proposed and the evolving nature of broadband internet access service, the grant of such an application would not serve the public interest." Id. Noting that "the construction benchmarks proposed by M2Z [we]re not particularly aggressive," and that they "f[e]ll[] short of the build out standards that [the FCC] ha[s] imposed in other contexts such as 700 MHz band," the FCC found that "granting [M2Z's] application would prevent, rather than facilitate, widespread broadband deployment." Id. at ¶ 15. We hold that, the Commission having given sufficient reasons, nothing in 47 U.S.C. § 157 prevents the Commission from deciding that M2Z's proposal was not in the public interest. C. Competitive Bidding Under 17 U.S.C. § 309(j) Under 47 U.S.C. § 309(j), the FCC must generally process "mutually exclusive applications . through a system of competitive bidding." 47 U.S.C. § 309(j)(l). The statute, however, makes an exception to this general call for auctions. Specifically, nothing in section 309(j) shall "be construed to relieve the Commission of the obligation in the public interest to continue to use engineering solutions, negotiation, threshold qualifications, service regulations, and other means in order to avoid mutual exclusivity in application and licensing proceedings." 47 U.S.C. § 309(j)(6)(E). M2Z uses this provision to repeat its argument that the Commission failed to assess all of its public interest evidence. It claims that the Commission must make a public interest finding to determine' whether holding an auction is appropriate. Because the Commission did not expressly evaluate all of M2Z's comments, M2Z argues that the Commission failed to live up to its statutory duties and should be reversed for acting arbitrarily and capriciously. This argument fails for many of the reasons mentioned before: M2Z again misconstrues the question presented to the agency. Nothing in the statute requires the Commission to specifically address every piece of evidence presented by M2Z. The Commission was required only to respond to the petition for forbearance (which it denied) and possibly to determine under 47 U.S.C. § 157 whether M2Z proposed any new technology or service that was in the public interest (which it decided M2Z had not). The words "public interest" appearing in 47 U.S.C. § 309(j)(6)(E) do not require additional explicit action by the FCC, except to address them in its response for M2Z's petition for forbearance under 47 U.S.C. § 160 "from Section 309(j)(l)." Furthermore, the Commission did assess the public interest when considering whether to dispense with an auction. It explained that before authorizing spectrum uses, [the FCC] typically first conduces] a rule-making proceeding to obtain public comment on how the band should be used and licensed. Beginning with the promulgation of Section 309Q), we have most commonly determined, after consideration of the public comment filed in the applicable rule making, that a licensing framework that permits the filing and acceptance of mutually exclusive applications, which are then required by statute to be resolved through competitive bidding, would best serve the public interest for the types of spectrum use proposed by M2Z.... [T]his type of framework best serves the public interest because it is the one most likely to result in the selection of licensees that will value the spectrum the most and put it to its highest and most efficient use. Order, at ¶ 10 (footnote omitted). The Commission decided that "even given the potentially longer timeline to the provision of actual service," it would rather auction the space than "give [M2Z] spectrum for free." Id. at ¶ 11. Leaving open the possibility of "an alternative licensing framework" (i.e., something other than an auction), the Commission refused forbearance because it "would be inconsistent with the public interest." Id. "[A]t this point," the Commission explained, "the record does not justify" deviation from the normal process of competitive bidding. Id. M2Z is correct that the Commission had to consider the public interest in deciding whether to forgo an auction. Whether this is characterized as an analysis under section 309 or a section 160 forbearance analysis matters little. And, as we have noted, the Commission considered the public interest when deciding whether to forgo an auction. It is not required to perform that analysis exactly the way M2Z would have performed it. As FCC precedent in support of its position, M2Z cites In re Improving Public Safety Communications in the 800 MHz Band, 19 F.C.C.R. 14,969 (2004). That case noted only that the Commission "ha[d] the authority" to forgo auctions — a point which is not disputed. Id. at ¶72 n. 236. It is worth noting, however, that the Commission did discuss forgoing auctions by "imposing] threshold qualifications" on the applicants, id.; M2Z's forbearance petition asks the Commission to put aside just such qualifications screening. M2Z also cites In re Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/24 GHz Bands, 18 F.C.C.R.1962 (2003), but that case specifically held that section 309(j)(l) did not apply at all, because the licenses were not "initial." See id. at ¶ 219-29. Because the Commission reasonably performed every statutory duty at issue, its Order was not arbitrary or capricious, and was not contrary to 47 U.S.C. § 309(j). III. Conclusion Although M2Z presents a number of creative arguments, none of them has serious legal merit. The FCC Order should therefore be affirmed in all respects. So ordered. . 47 U.S.C. § 157(b) reads as follows: "The Commission shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed. If the Commission initiates its own proceeding for a new technology or service, such proceeding shall be completed within 12 months after it is initiated." . M2Z's insistence that the Commission's Order came after the end of 47 U.S.C. § 157(b)'s one-year statute of limitations is unavailing. Although M2Z filed its original application on May 5, 2006, it first mentioned 47 U.S.C. § 157 in its forbearance petition of September 1, 2006. The Commission's Order was released August 31, 2007. By piggy-backing a petition on its application, M2Z cannot force the FCC to act in less time than the statute permits.

460 U.S. 1052

Ct. App. Ky. Certiorari denied.

368 F.3d 190

Judge KATZMANN concurs in the majority opinion, and files a separate concurring opinion. RAGGI, Circuit Judge. This case presents us with the first opportunity to interpret the disentitlement provision of the Civil Asset Forfeiture Reform Act of 2000 ("CAERA"), Pub.L. No. 106-185, § 14, 114 Stat. 202, 219 (2000), codified at 28 U.S.C. § 2466. Stella Collazos is a Colombian national indicted in federal and state courts for her alleged operation of a multi-million dollar money-laundering enterprise. In 1996, law enforcement authorities seized $1.1 million from account number 68108021 in Ms. Collazos's name at Prudential Securities, Inc., in New York (the "Prudential Account"), alleging that these monies were related to Ms. Collazos's criminal activities. Ms. Collazos now appeals from a judgment of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge), entered October 25, 2002, which dismissed her claim to the seized monies pursuant to 28 U.S.C. § 2466 based on Ms. Collazos's refusal to enter the United States to face the related criminal charges. See United States v. Contents of Account Number 68108021, 228 F.Supp.2d 436 (S.D.N.Y.2002). Ms. Collazos challenges this judgment on three grounds: (1) the disentitlement provision of § 2466 should not have been applied to her case because she is not a fugitive as that term is understood at common law; (2) dismissal of her claim pursuant to § 2466 deprived her of property without due process of law; and (3) retroactive application of § 2466 to the 1996 seizure of her Prudential Account further violated due process. We conclude that none of these arguments has merit. First, as the plain language of § 2466 indicates, the statute permits disentitlement of a civil forfeiture claimant who has never been in the United States if, upon notice or knowledge of an outstanding criminal warrant for his arrest, the person "declines to enter" the United States or "otherwise evades the jurisdiction of the court" in which the criminal proceeding is pending in order to avoid prosecution. 28 U.S.C. § 2466(a)(1)(B), (C). Second, application of § 2466 to Ms. Collazos did not deprive her of due process with respect to the seized money; rather, she waived her right to be heard in the civil case when she refused to submit to state and federal jurisdiction in related criminal cases. Finally, § 2466 was not applied retroactively to Ms. Collazos because her refusal to enter the United States continued after CAF-RA's enactment. Accordingly, we affirm the district court's judgment. I. Factual Background A. The Seizure of the Prudential Account On March 23, 1999, the United States commenced this in rem forfeiture action against the $1.1 million contents of Ms. Collazos's Prudential Account on the grounds that the funds were the proceeds of illegal narcotics activity, see 21 U.S.C. § 881(a)(6), or were property involved in, or traceable to property involved in, a violation of the money-laundering statutes, see 18 U.S.C. § 981(a)(1)(A), 1956(a). In its complaint, the government detailed events leading to the initial seizure of the defendant Prudential Account on June 10, 1996. The previous month, on May 1, 1996, Texas state authorities had searched the Houston office of UFF Exchange and Giros Inc. ("UFF"), a money-remitting business owned on paper by Alba Marina Arias but owned in fact by Stella Collazos, who supervised its operation from her home in Cali, Colombia. Papers seized pursuant to the Texas search revealed that UFF routinely deposited money in Houston bank accounts on behalf of fictitious individuals and then wired those funds to nominee or fictitious accounts at BankAtlantic in Miami, Florida. In the sixteen months between January 1995 and April 1996, UFF wire transferred approximately $4.5 million, or about 95% of its total wire volume, from such Texas bank accounts to BankAtlantic. Mindful that such a pattern of money laundering is frequently employed by drug traffickers, Texas authorities had previously analyzed some of the actual currency deposited by UFF and obtained positive test results for cocaine. In the weeks immediately following execution of the search warrant, a federal court-ordered wiretap intercepted numerous telephonic and facsimile communications between Ms. Collazos and Blanca Piedad Ortiz, a BankAtlantic manager who was subsequently convicted for her role in the laundering scheme, about the need to change names on various accounts listed to fictitious owners. In one such conversation, Ms. Collazos and Ms. Ortiz spoke about the need to move funds from certain nominee accounts to a BankAtlantic account in the name of Javier Rojas. They further discussed the need to dissociate Ms. Collazos's husband, Victor, from the nominee accounts. Soon thereafter, on May 31, 1996, arrangements were made through the London office of Prudential Securities to open an account in Ms. Collazos's name in New York. That same day, Alba Marina Arias instructed Ms. Ortiz to wire $650,000 from BankAtlantic accounts in the names of Javier Rojas and Victor Collazos to Ms. Collazos's new Prudential Account. Over the next week, an additional $450,000 was transferred to the Prudential Account from bank accounts linked to another money-remitting business owned and operated by Ms. Collazos, Stella Giros Al Minuto ("Stella Giros"). Wire transfers showed that Stella Giros, like UFF, had wired millions of dollars to nominee accounts at Bank Atlantic in 1995-96. Within days of these transfers, on June 5, 1996, federal authorities concluded a year-long investigation into money laundering out of BankAtlantic accounts by arresting Ms. Ortiz and freezing 1100 Ban- kAtlantic accounts supervised by her. See generally Coronado v. BankAtlantic Bancorp., Inc., 222 F.3d 1315, 1317-18 (11th Cir.2000) (detailing history of the investigation). On June 10, 1996, the New York City Criminal Court issued a warrant for the seizure of Ms. Collazos's Prudential Account. By order dated September 24, 1996, the city court directed that the $1.1 million contents of the Prudential Account be turned over to the United States Customs Service for forfeiture. Ms. Collazos was notified of this fact by letter dated October 23, 1996, and on December 12, 1996, she filed a cash bond and requested that the case be referred for judicial forfeiture. See 19 U.S.C. § 1608; 19 C.F.R. § 162.47; 21 C.F.R. § 1316.76. B. The Federal Forfeiture Proceedings — Ms. Collazos's Refusal to Appear for Deposition For reasons not apparent on the record before us, the federal forfeiture proceedings here at issue were not commenced until March 23, 1999. In the interim, on July 17, 1998, a Texas grand jury returned a sealed indictment charging Ms. Collazos with unlawfully engaging in the business of currency transmission without a license, a state felony crime. Eight days after the filing of the forfeiture complaint, on March 31, 1999, Ms. Collazos, through counsel, filed a claim to the subject funds, and on April 23, 1999, she formally answered the complaint, generally denying the allegations of criminal activity and asserting, inter alia, that she was an innocent owner of the seized money. See, e.g., United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 487-88 (2d Cir.1995) (discussing innocent-owner provision of former 18 U.S.C. § 981(a)(2)). The United States noticed Ms. Collazos's deposition for May 1999, but she declined to appear at that time, prompting a series of adjournments. Correspondence between the parties reveals that Ms. Collazos sought to avoid deposition in the United States lest she be arrested on the pending Texas criminal charge. On October 6,2000, the district court entered an order requiring the parties to complete discovery by January 4, 2001, specifically directing Ms. Collazos to appear for deposition in the United States on or before that date or face an order of default or dismissal in the case. This order was vacated on November 15, 2000, and a new order entered adhering to the January 4, 2001 discovery deadline but stating that the penalty for Ms. Collazos's failure to appear for deposition by that date would be the entry of "an appropriate preclusion order." Ms. Colla-zos did not appear for deposition as directed in January 2001. On June 5, 2001, the district court set the case down for trial on September 25, 2001. C. The Federal Indictment and Criminal Trial A few days earlier, on June 1, 2001, a federal grand jury sitting in the Southern District of Florida returned a sealed indictment charging Ms. Collazos, Ms. Ortiz, and Lucia Ramirez, an assistant to Ms. Ortiz at BankAtlantic, with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). The indictment also sought criminal forfeiture pursuant to 18 U.S.C. § 982(a)(1) of $144,281,503, the total amount allegedly laundered during the conspiracy. The indictment specifically noted that this amount "includes but is not limited to the contents of Account No. 68108[0]21 held in the name of Stella Col-lazos located at Prudential Securities, Inc.," i.e., the $1.1 million then at issue in the New York civil forfeiture proceeding. United States v. Ortiz, No. 01-0539 (S.D.Fla. Jun. 1, 2001) (Indictment). The Florida indictment was unsealed on August 13, 2001, and the following day, gov- eminent counsel in the New York action sought and eventually obtained a stay of the civil forfeiture trial to permit the filing of a motion pursuant to 28 U.S.C. § 2466 to dismiss Ms. Collazos's claim. In October 2001, an attorney purporting to act for Ms. Collazos contacted the prosecutor in the Southern District of Florida and inquired whether the government would consent to Ms. Collazos's pre-trial release if she voluntarily surrendered in the criminal ease. The prosecutor declined to consent to the proposal, and Ms. Collazos did not appear in the United States when trial commenced on December 6, 2001. Two weeks later, on December 19, 2001, Ms. Ortiz was found guilty and subsequently sentenced to 240 months' incarceration. In proving the conspiracy against Ms. Ortiz, the prosecution adduced considerable evidence inculpating Ms. Collazos. The district court cited excerpts from the Ortiz trial transcript in its ruling in this case. For example, Rubin Dario Roas-cos-Mendez, a former employee of Ms. Collazos, testified to the different commissions charged by her to launder money. See United States v. Contents of Account Number 68108021, 228 F.Supp.2d at 441. Lucia Ramirez, who had pleaded guilty before trial pursuant to a plea agreement, testified that on or about May 31, 1996, she wired $657,000 out of BankAtlantic accounts controlled by Ms. Collazos to Europe, then back to BankAtlantic, and then to New York in order to help conceal the money and to avoid its seizure by investigators. Id. at 442. Based on its overall review of the Ortiz trial, the district court found that the evidence demonstrated "that Collazos laundered narcotics proceeds through her money remitting businesses and through accounts she and Piedad Ortiz managed at BankAtlantic. Furthermore, it is clear that the defendant-in-rem funds are directly traceable to that same money laundering scheme." Id. D. The § 2k66 Dismissal of Ms. Colla-zos's Claim in the Forfeiture Action On December 5, 2001, the day prior to the start of the Ortiz criminal trial, the government moved to dismiss Ms. Colla-zos's claim in the civil forfeiture action on the ground that as a person who refused to enter the United States to adswer pending criminal charges, she was not entitled to be heard in a related civil proceeding. See 28 U.S.C. § 2466. After extensive briefing, evidentiary submissions, and oral argument, the district court granted the government's motion in its Memorandum Opinion and Order dated October 25, 2002. See United States v. Contents of Account Number 68108021, 228 F.Supp.2d 436. This timely appeal followed. II. Discussion A. Title 28 U.S.C. § 2166 Properly Applies to Ms. Collazos 1. Ms. Collazos's Claim that She Is Not a "Fugitive" Ms. Collazos asserts that 28 U.S.C. § 2466, which is entitled "Fugitive disentitlement," cannot be applied to her because she is not a "fugitive" as that term is understood at common law. We review the legal applicability of § 2466 to Ms. Collazos's forfeiture claim de novo; to the extent we conclude that the statute is applicable to her situation, we review the district court's decision to order disentitlement for abuse of discretion. See generally Organic Cow, LLC v. Center for New England Dairy Compact Research, 335 F.3d 66, 71 (2d Cir.2003); United States v. Morgan, 254 F.3d 424, 426 (2d Cir.2001). In support of her argument, Ms. Colla-zos cites Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278 (2d Cir.1997), wherein this court recognized that "[a] fugitive from justice has been defined as '[a] person who, having committed a crime, flees from [the] jurisdiction of [the] court where [a] crime was committed or departs from his usual place of abode and conceals himself within the district.' " Id. at 281 (quoting Black's Law Dictionary 604 (5th ed.1979)). Relying on this common-law definition, Ms. Collazos submits that she cannot be deemed a fugitive because she was not in the United States at the time of the alleged money laundering; indeed, she submits that she was last in the United States in 1977. To the extent the government charges her with directing money-laundering activity in the United States from her home in Colombia, Ms. Collazos asserts that such conduct does not render her a fugitive because, as Justice Holmes observed almost a century ago, although "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the foreign actor] had been present at the effect, . it does not follow that [the person] is a fugitive from justice." Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Neither Empire Blue Cross nor Strassheim, nor for that matter any other case cited in Ms. Collazos's briefs, deals with the particular disentitlement statute here at issue, 28 U.S.C. § 2466. Although § 2466 uses the term "fugitive" in its title, the word is not employed in the text of the provision. Well-established principles of construction dictate that statutory analysis necessarily begins with the "plain meaning" of a law's text and, absent ambiguity, will generally end there. See, e.g., Lamie v. United States Trustee, — U.S. —, —, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004); Park 'N Fly v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985); accord United States v. Lucien, 347 F.3d 45, 51 (2d Cir.2003). While a title may be a useful "tool[ ] . for the resolution of a doubt about the meaning of a statute," Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (internal quotation marks omitted), a "title . cannot limit the plain meaning" of unambiguous text, Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (internal quotation marks omitted); accord Drax v. Reno, 338 F.3d 98, 110 (2d Cir.2003). This conclusion necessarily pertains to the common-law meaning of a word found only in a statutory title, but not used in the text. See generally Carter v. United States, 530 U.S. 255, 264, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) ("The canon on imputing common-law meaning applies only when Congress makes use of a statutory term with established meaning at common law-" (emphasis in original)). In this case, the text of § 2466 makes plain that statutory disentitlement extends beyond common-law fugitives to encompass persons who may never previously have been in the United States but who know that they are subject to arrest in this country and who, therefore, refuse to enter its jurisdiction in order to avoid prosecution. Before examining the exact language of the statute, however, a brief discussion of the circumstances leading to the enactment of § 2466 is useful. 2. The Judicial Fugitive Disentitlement Doctrine The fugitive disentitlement doctrine was originally developed by courts to support dismissal of direct appeals by escaped criminal defendants. As the Supreme Court explained in Smith v. United States, 94 U.S. 97, 97, 24 L.Ed. 32 (1876), "[i]t is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party . is where he can be made to respond to any judgment we may render." Accord Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (escape "disentitles the defendant to call upon the resources of the Court for determination of his claims"); United States v. Awadalla, 357 F.3d 243, 245 (2d Cir.2004) (and cases cited therein). Over time, numerous courts, including this one, applied disentitlement to fugitives in civil cases, including forfeiture proceedings, noting "the impropriety of permitting a fugitive to pursue a [civil] claim in federal court where he might accrue a benefit, while at the same time avoiding [a criminal] action of the same court that might sanction him." United States v. Eng, 951 F.2d 461, 465 (2d Cir.1991); see United States v. $45,940 in United States Currency, 739 F.2d 792, 797-98 (2d Cir.1984); see also United States v. Timbers Preserve, 999 F.2d 452, 455 (10th Cir.1993); United States v. 7707 S.W. 74th Lane, 868 F.2d 1214, 1216 (11th Cir.1989); United States v. $129,374 in United States Currency, 769 F.2d 583, 587 (9th Cir.1985). But see United States v. $40,877.59 in United States Currency, 32 F.3d 1151, 1156-57 (7th Cir.1994) (declining to apply disen-titlement doctrine in civil forfeiture); United States v. Pole 3172, Hopkinton, 852 F.2d 636, 643-44 (1st Cir.1988) (declining to apply doctrine to particular case without ruling on general applicability to civil forfeitures); United States v. $83,320 in United States Currency, 682 F.2d 573, 576 (6th Cir.1982) (expressing concern that fugitive disentitlement in civil forfeitures could prevent claims by other interested parties). 3. Degen v. United States Curbs the Courts' Inherent Power to Disentitle Fugitive Claimants in Civil Forfeiture Proceedings In Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), the Supreme Court ruled that courts could not impose the "harsh sanction of absolute dis-entitlement" on fugitives in civil forfeiture cases simply on the basis of their "inherent authority to protect their proceedings and judgments," id. at 823, 827. While acknowledging "disquiet at the spectacle of a criminal defendant reposing [abroad], beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored," id. at 828, the Court's immediate concern was the "danger of overreaching when one branch of the Government, without benefit of cooperation or correction from the others, undertakes to define its own authority," id. at 823. In short, a proper respect for the constitutional separation of powers in formed Degen's decision to restrict the courts' inherent authority to order disen-titlement. In forfeiture cases, where a court's jurisdiction over the property in dispute ensures its ability to enforce a judgment, the Supreme Court concluded that disentitlement was simply too "blunt" a sanction for a court to impose on its own. Id. at 828,116 S.Ct. 1777. 4. Congress Confers Statutory Authority on the Courts to Order Disen-titlement in Civil Forfeiture Cases Reaching Beyond Common-Law Fugitives In 2000, in conjunction with a comprehensive revision of civil asset forfeiture laws, Congress specifically conferred statutory authority on federal courts to order disentitlement in civil forfeiture cases. See 28 U.S.C. § 2466; see generally, Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict Deadlines Imposed on All Parties, 27 J. Legis. 97 (2001) (providing an overview of changes effected by CAFRA). Section 2466 states, in pertinent part: (a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person— (1)after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution— (A) purposely leaves the jurisdiction of the United States; (B) declines to enter or reenter the United States to submit to its jurisdiction; or (C)otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and (2)is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction. By its terms, the statute identifies five prerequisites to disentitlement: (1) a warrant or similar process must have been issued in a criminal case for the claimant's apprehension; (2) the claimant must have had notice or knowledge of the warrant; (3)the criminal case must be related to the forfeiture action; (4) the claimant must not be confined or otherwise held in custody in another jurisdiction; and (5) the claimant must have deliberately avoided prosecution by (A) purposefully leaving the United States, (B) declining to enter or reenter the United States, or (C) otherwise evading the jurisdiction of a court in the United States in which a criminal case is pending against the claimant. Even when these requirements are satisfied, however, § 2466 does not mandate disentitlement; the ultimate decision whether to order dis-entitlement in a particular case rests in the sound discretion of the district court. See id. § 2466(a); see also 146 Cong. Rec. S1753-02, *81761 (Mar. 27, 2000) (statement of Sen. Leahy) (explaining that legislation "provides a statutory basis for a judge to disallow a civil forfeiture claim by a fugitive, while leaving judges discretion to allow such a claim in the interests of justice," and noting that Degen "left open the possibility that Congress could establish such [a] doctrine by statute"). The three lettered subparts of the statute's fifth requirement indicate that the statutory disentitlement power conferred by Congress is not limited, as Ms. Collazos urges, to common-law fugitives. Certain ly, subpart A targets traditional common-law fugitives, specifically, persons who allegedly committed crimes while in the United States and who, upon learning that their arrest was sought, fled the country. Similarly, the "reenter" provision of sub-part B extends disentitlement authority over another class of persons traditionally recognized as "fugitives," that is, persons who allegedly committed crimes while in the United States but who were outside the country — for whatever reason — when they learned that their arrests were sought and who then refused to return to the United States in order to avoid prosecution. See, e.g., United States v. Eng, 951 F.2d at 464 ("Fleeing from justice is not always a physical act; it may be a state of mind.... Thus, a defendant with notice of criminal charges who actively resists returning from abroad to face those charges is a fugitive from justice . "); United States v. $45,940 in United States Currency, 739 F.2d at 796-98 (holding that deported Canadian who failed to seek permission from U.S. Consulate to enter United States and answer pending criminal charges was properly deemed a fugitive); see also Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir.1976) (holding that no "meaningful distinction exists between those who leave their native country and those who, already outside, decline to return"). But the statute is by no means limited to these two groups. Subpart B also applies to persons who, qualifying in all four other respects for disentitlement, decline to "enter" the United States' jurisdiction. Ms. Collazos conclusorily argues that Congress could not have meant "enter" to pertain to persons who had never previously been in the United States, or even to persons such as herself whose last visit to the United States predated her alleged criminal conduct by many years. This argument, however, ignores the plain language of the two words — "enter or reenter" — employed by Congress in subpart B. See generally Carey v. Saffold, 536 U.S. 214, 219, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (looking to "ordinary meaning" of "pending" to interpret tolling provision of 28 U.S.C. § 2244(d)); Muscarello v. United States, 524 U.S. 125, 128-32, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (looking to ordinary English usage to discern meaning of "carry" as used in 18 U.S.C. § 924(c)(1)). The terms are not synonymous: to "enter" means to go into a place; to "reenter" means to go into a place again. See Webster's Third New International Dictionary 756, 1907 (2002). In short, only "reenter" communicates the limited sense urged by Ms. Collazos: that a forfeiture claimant who had been in the United States at the time of the alleged crime would, thereafter, refuse to return to this country to face charges. Had Congress intended to limit disentitlement to such persons, there would have been no need to refer also to persons who refuse to "enter" the United States. We are, of course, obliged "to give effect, if possible, to every clause and word of a statute," and to render none superfluous. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal quotation marks omitted). Moreover, when, as here, the two words at issue are connected by "or" rather than "and," and when no commas set off the second word to suggest that it stands in apposition to the first, we construe the disjunctive words to convey different meanings. See United States v. Bernier, 954 F.2d 818, 819 (2d Cir.1992) (holding that "second or subsequent" in 18 U.S.C. § 924(c) convey different meanings). Thus, we conclude that Congress's use of "enter" as well as "reenter" in subpart B extends disentitlement authority beyond common-law fugitives, who may have been in the United States at the time they committed the charged crimes and who refuse to return, to persons who, although they may have never set foot within the territorial jurisdiction of the United States, know that warrants are outstanding for them and, as a result, refuse to enter the country. Our conclusion that § 2466 disentitlement extends beyond traditional common-law fugitives is reinforced by subpart (C) of the statute, which permits courts to disentitle any person who, meeting all four other requirements, "otherwise evades the jurisdiction of the court in which a criminal case is pending against the person." 28 U.S.C. § 2466 (emphasis added). "Evasion" is an expansive concept encompassing any "craft or strategem . to avoid facing up to something." Webster's Third New International Dictionary, at 786. While it is broad enough to include the deliberate flight identified in subpart (A) and the refusal to "enter or reenter" identified in subpart (B), the use of the introductory word "otherwise" indicates that the evasion referred to in subpart (C) reaches beyond these specific examples to myriad means that human ingenuity might devise to permit a person to avoid the jurisdiction of a court where a criminal case is pending against him. Nothing in subpart (C) indicates that a person must have been within the jurisdiction of the court at the time the crime was committed in order thereafter to evade jurisdiction. As the government notes in its brief, most crimes that give rise to civil forfeiture proceedings can be committed extra-territorially. In addition to the money-laundering crimes charged against Ms. Collazos, examples of such crimes include drug trafficking, see United States v. Orozco-Prada, 732 F.2d 1076, 1087-88 (2d Cir.1984) (discussing extraterritorial jurisdiction for violation of 21 U.S.C. § 841(a)(1), an offense for which the applicable forfeiture provision is 21 U.S.C. § 881(a)(6)); certain types of wire fraud, see United States v. Kim, 246 F.3d 186, 188-91 (2d Cir.2001) (discussing extraterritorial jurisdiction for violation of 18 U.S.C. § 1343, certain violations of which may trigger forfeiture pursuant to 18 U.S.C. § 981(a)(1)(D)); and international terrorism, see 18 U.S.C. § 2339C (triggering forfeiture provisions of 18 U.S.C. § 981(a)(1)(H)). Indeed, it was in connection with a terrorist prosecution that we recently had reason to reiterate the principle that "Congress is presumed to intend extraterritorial application of criminal statutes where the nature of the crime does not depend on the locality of the defendants' acts and where restricting the statute to United States territory would severely diminish the statute's effectiveness." United States v. Yousef, 327 F.3d 56, 87 (2d Cir.2003). Experience demonstrates that the heads of global criminal networks frequently orchestrate their schemes from foreign safe havens while dispatching subordinates to the United States to handle practical implementation. Given this reality, it is hardly surprising that Congress should have decided not to draw a disentitlement distinction between a crime leader and his subordinate when both seek to avoid prosecution in this country, the former by declining to "enter" the United States for the first time and the latter by declining to "reenter." Either scenario presents the unseemly spectacle recognized by the Supreme Court in Degen and by this court in Eng of a criminal defendant who, facing both incarceration and forfeiture for his misdeeds, attempts to invoke from a safe distance only so much of a United States court's jurisdiction as might secure him the return of alleged criminal proceeds while carefully shielding himself from the possibility of a penal sanction. Because Congress has clearly chosen not to limit disentitlement in such civil forfeiture cases to common-law fugitives, we reject Ms. Collazos's argument that § 2466 cannot apply to her as a matter of law. 5. The District Court Did Not Abuse Its Discretion in Ordering Disen-titlement Ms. Collazos raises no serious challenge to the district court's factual findings in support of its order of disentitlement. Indeed, the record amply supports the conclusion that all five statutory requirements for forfeiture were satisfied in her case. First, it is undisputed that warrants for her arrest were outstanding both on the Texas state banking charge and the Florida federal money-laundering charge. Second, Ms. Collazos was plainly aware of the Texas charge as evidenced by her forfeiture counsel's reference to it as an excuse for her failure to appear for deposition in the summer and fall of 1999. Similarly, her awareness of the Florida charge was evidenced by the unsuccessful efforts of another attorney acting on her behalf in October 2001 to negotiate a surrender that would not involve Ms. Collazos's pre-trial detention. Third, the relationship between the Florida criminal case and the civil forfeiture action could not have been closer: the money transfers to the seized Prudential Account were proved as part of the laundering charge at the criminal trial against co-defendant Ortiz; witnesses at the Ortiz trial testified in some detail to Ms. Collazos's involvement in these transfers and the larger criminal scheme; and the $1.1 million seized from the Prudential Account was specifically identified in the criminal forfeiture count of the Florida indictment. Fourth, nothing in the record indicates that Ms. Collazos was ever confined, incarcerated, or otherwise unable to travel to the United States of her own volition in the months before the district court ordered disen-titlement. Finally, the totality of circumstances indicates that Ms. Collazos made a conscious choice not to "enter or reenter the United States" to face the criminal charges pending against her. Ms. Collazos nevertheless complains that but for the delay by the district court in conducting the trial of her forfeiture case, that civil matter might have been' resolved before she qualified for disentitlement under the statute. Any suggestion that the district court thus abused its discretion in handling the issue of disentitlement is meritless. To the extent there was initial delay in scheduling the forfeiture trial, this was a product of Ms. Colla-zos's repeated failures to appear for deposition, part of her acknowledged efforts to avoid prosecution on the Texas charge. When in August 2001, approximately one month before the scheduled forfeiture trial, the district court was apprised of Ms. Collazos's indictment on the federal charge in Florida, its stay of the forfeiture trial was not, as Ms. Collazos suggests, a maneuver to ensure that she qualified for disentitlement. To the contrary, by waiting until October 2002, more than a year after Ms. Collazos learned of the Florida charges, before ordering disentitlement, the district court plainly afforded her every reasonable opportunity to submit to United States jurisdiction in the related criminal case and to avoid disentitlement pursuant to § 2466. See Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d 810, 316-17 (2d Cir.1998) (and cases cited therein) (recognizing broad district court discretion to stay proceedings as an incident to its power to control its docket). In sum, we conclude that the district court's order of disentitlement fully comported with § 2466, and involved no abuse of discretion. B. Application of § 2166 to Ms. Collar zos's Case Did Not Violate Due Process The Due Process Clause of the Fifth Amendment establishes "the general rule that individuals must receive notice- and an opportunity to be heard before the Government deprives them of property." United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). The Supreme Court specifically recognized the applicability of this principle to civil forfeiture actions in Degen v. United States, noting that "[i]n an ordinary case a citizen has a right to a hearing to contest the forfeiture of his property, a right secured by the Due Process Clause, and implemented by federal rule." 517 U.S. at 822, 116 S.Ct. 1777 (internal citations omitted). Degen, however, declined to "intimate a view" on the constitutional issue raised on this appeal by Ms. Collazos: "whether enforcement of a disentitlement rule under proper [statutory] authority would violate due process." Id. at 828, 116 S.Ct. 1777. We hold that Ms. Collazos was not deprived of due process by the district court's § 2466 disentitlement order. Rather, we conclude that Ms. Collazos voluntarily waived her right to be heard in the civil forfeiture action by refusing to appear in the related criminal case. This court first considered the due process implications of disentitlement orders in civil forfeiture cases some twenty years ago in United States v. $45,940 in United States Currency and there ruled that a claimant "waived his right to due process in the civil forfeiture proceeding by remaining a fugitive," 739 F.2d at 798. We reiterated this holding in United States v. Eng, explaining that a person who refuses to appear in this country for arraignment on criminal charges of which he has notice thereby waives "his due process rights in related civil forfeiture proceedings," 951 F.2d at 466. Ms. Collazos urges us to reconsider these holdings because the underlying assumption of these two cases— that inherent judicial authority permitted disentitlement in civil forfeiture cases— was implicitly overruled by Degen. She submits that two cases cited in Degen—McVeigh v. United States, 78 U.S. (11 Wall.) 259, 20 L.Ed. 80 (1870), and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897) — support the conclusion that disentitlement in civil forfeiture cases violates due process. We disagree. McVeigh and Hovey involved disputes arising out of the Civil War. In McVeigh, a former Confederate official filed a writ of error to challenge the United States' confiscation of his property. The district court struck his claim and answer on the grounds that as an enemy alien he had no right to be heard. Reversing, the Supreme Court ruled that every person has the right to be heard in defense by a court when his life or property are in jeopardy: "If assailed there, he could defend there. The liability and the right are inseparable." McVeigh v. United States, 78 U.S. at 267, 78 U.S. 259. Hovey's dispute involved monies awarded for settlement of claims arising from the depradation of the Alabama and her sister ships. See generally Susan Poser & Elizabeth R. Varón, United States v. Steinmetz, The Legal Legacy of the Civil War, Revisited, 46 Ala. L.Rev. 725, 760 n.201 (1995). When defendants disobeyed a court order directing them to deposit $49,297.50 paid them by the receiver into the court registry, the district court held them in contempt, struck their answer in the case, and entered final judgment against them in the full amount sought by claimants, $197,190. See Hovey v. Elliott, 167 U.S. at 411-12, 17 S.Ct. 841. The Supreme Court ruled that the power "to punish for contempt" did not permit a court to strike a party's answer, "suppress the testimony in his favor, and condemn him without consideration thereof, and without a hearing, on the theory that he has been guilty of a contempt of court." Id. at 413,17 S.Ct. 841. The common principle to be derived from these two cases, as the Supreme Court observed in Degen, is that disentitlement may not constitutionally be employed simply "as punishment." Degen v. United States, 517 U.S. at 828, 116 S.Ct. 1777. As Hovey emphasized, "[t]he fundamental conception of a court of justice is condemnation only after hearing." Hovey v. Elliott, 167 U.S. at 413-14, 17 S.Ct. 841. But as then-Justice White, the author of Ho-vey, later explained in Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909), no punishment in violation of due process occurs when a court, pursuant to statutory authority, strikes a party's answer and enters default judgment as a consequence of the party's failure to comply with a court order to produce material evidence in the case: "the striking out of the answer and default was a punishment, but it was only remotely so, as the generating source of the power was the right to create a presumption flowing from the failure to produce," id. at 351, 29 S.Ct. 370 (observing that party's failure to produce requested evidence was akin to "an admission of the want of merit in the asserted defense"); cf. Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209-10, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (noting that Hovey "was substantially modified by Hammond Packing Co.," and distinguishing between a party's willful refusal to comply with a pretrial order, which would support dismissal of an action pursuant to Fed.R.Civ.P. 37, and a party's inability to comply, which would not). Statutory disentitlement pursuant to § 2466 is more akin to the presumptive action approved in Hammond than to the punitive measures condemned in Hovey and McVeigh. Certainly Ms. Collazos, unlike Mr. McVeigh, was not ordered disen-titled as punishment for misconduct that predated her civil forfeiture claim. More important, while Mr. McVeigh could not undo his past support for the Confederacy in order to obtain a hearing on his confiscation claim, Ms. Collazos could have secured a hearing on her forfeiture claim any time between August 2001 and October 2002 simply by entering the United States. Neither was Ms. Collazos's disentitlement a punishment for a discrete past act of contempt as in Hovey. Her situation might better be analogized to that of a civil contemnor who, for more than a year, knew that she could secure a forfeiture hearing and avoid disentitlement by complying with the statutory requirement that she enter the United States. Only her persistent refusal to comply resulted in the court's dismissing her forfeiture claim. No additional burden was imposed on her that could fairly be characterized as "punishment." See generally International Union, UMW v. Bagwell, 512 U.S. 821, 831, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (discussing differences between civil and criminal contempt and noting that "[b]e-cause civil contempt sanctions are viewed as nonpunitive and avoidable, fewer procedural protections for such sanctions have been required"). In other words, Ms. Col-lazos was denied a hearing on her terms, but a hearing was certainly available to her on the terms established by Congress. By authorizing § 2466 disentitlement, Congress imposed a presumption in civil forfeiture cases of the sort approved in Hammond. Specifically, when persons, such as Ms. Collazos, refuse to enter the United States to face criminal charges, but simultaneously attempt to challenge related civil forfeitures by asserting innocent-owner defenses, the claimant's deliberate absence from the United States gives rise to a presumption that there is no merit to the innocent-ownership claim. Indeed, in many cases, certainly in Ms. Collazos's, the presumption is reinforced when the claimant's absence deprives the government of the opportunity to conduct a deposition, which itself supports an adverse inference as to the criminal source and use of the seized currency. See generally United States v. United States Currency in the Amount of $119,984.00, More or Less, 304 F.3d 165, 176-77 (2d Cir.2002) (noting that an adverse inference may be drawn against a civil forfeiture claimant who invokes his Fifth Amendment right not to testify). Ms. Collazos concedes that an adverse inference could have been drawn from her failure to submit to deposition; nevertheless, she insists that due process only permitted an inference, not disentitlement. But that is not the holding in Hammond. There too, the party's failure to produce ordered material could simply have given rise to an adverse trial inference, but the Supreme Court ruled that a legislature acted within its power, and did not deprive a litigant of due process, when it used the adverse inference as a basis for requiring dismissal of a non-complying party's answer and the entry of a default judgment. For the same reason, we conclude that when persons knowingly refuse to produce themselves in the United States to answer criminal charges, Congress acts within its power and does not violate due process by authorizing courts to disallow their challenges in related civil forfeiture proceedings. Two additional reasons support our conclusion that § 2466 did not deprive Ms. Collazos of due process: (1) Ms. Collazos was afforded notice and opportunity to be heard on the government's claim that she satisfied the five statutory requirements for § 2466 disentitlement, and (2) § 2466 did not require the district court to order disentitlement. The first factor ensured that disentitlement in Ms. Collazos's case was consistent with constitutional and statutory procedural guaranties. Thus, Ms. Collazos could have challenged the sufficiency of the government's proof that she knew or had notice that her arrest was sought in the United States, that there was a factual relationship between the pending criminal charges and the forfeiture proceeding, that she was in fact able to come to the United States, or any of the other requirements for disentitlement established by § 2466. The second factor permitted Ms. Collazos to present the district court with any facts and circumstances that might indicate that justice was not served by disentitlement in her case. In sum, because statutory disentitlement is itself preceded by notice and hearing, and because such disentitlement does not impose a punishment but rather creates an adverse presumption that a claimant can defeat by entering an appearance in a related criminal case, we hold that 28 U.S.C. § 2466 does not violate due process by depriving a forfeiture claimant of property without a hearing. Instead, as we ruled in Eng and $45,949, it is the claimant who knowingly waives that right by deliberately refusing to appear in the related criminal case. C. Section 2466 Was Not Retroactively Applied in Ms. Collazos's Case Ms. Collazos asserts that she was further deprived of due process by the retroactive application of § 2466, enacted in 2000, to her forfeiture proceeding, which was initiated in 1999. "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1488, 128 L.Ed.2d 229 (1994). In connection with CAFRA's revisions to the civil forfeiture laws, Congress did provide generally for new provisions of law to apply only to cases commenced 120 days after the April 25, 2000 enactment date. See CAFRA § 21 (codified at 8 U.S.C. § 1324 note). Congress provided an exception, however, for § 2466, making that provision applicable "to any case pending on or after the date of the enactment of the Act." Id. § 14(c) (codified at 28 U.S.C. § 2466 note) (emphasis added). Ms. Collazos does not dispute Congress's intent to apply § 2466 retroactively. Instead, she asserts that Congress could not constitutionally make this choice because a fugitive's right to defend a forfeiture action, as recognized in Degen, is akin to a property right that cannot be withdrawn retroactively consistent with due process. We need not address this argument, however, because it is not supported by the record. In Ms. Collazos's case, the statute does not "attach[ ] new legal consequences to events completed before its enactment," Landgraf v. USI Film Prods., 511 U.S. at 270, 114 S.Ct. 1483, that is, to the alleged money-laundering activities that gave rise to the forfeiture of her Prudential Account. Instead, the legal consequences authorized by § 2466 pertain to Ms. Collazos's post-enactment conduct, specifically, to her failure, from August 2001 through October 2002, to enter the United States to face pending criminal charges. Ms. Collazos had no right to evade prosecution on these charges either before or after the enactment of § 2466. Thus, when, despite notice and an opportunity to be heard on a § 2466 motion, she persisted in refusing to enter this country through 2002, the district court's disen-titlement order involved no retroactive application of law. III. Conclusion To summarize, we hold (1) that disen-titlement pursuant to 28 U.S.C. § 2466 is not limited to persons viewed as "fugitives" at common law but also applies to persons, such as Ms. Collazos, whose criminal conduct outside the United States subjects them to prosecution in this country and who, knowing that their arrest is sought, deliberately refuse to enter the United States in order to avoid prosecution. Further, we hold (2) that § 2466 disentitlement does not violate due process because the statute does not punitively deprive a person of the right to be heard in connection with civil forfeiture. Rather, it establishes a presumption that a person who refuses to produce himself in connection with criminal charges relating to the civil forfeiture has no meritorious defense against the latter action. Because a person can defeat that presumption by appearing in the criminal case, a deliberate choice not to do so constitutes a knowing waiver of the hearing otherwise available by law. Finally, we hold (3) that § 2466 is not applied retroactively when a person whose property was seized before CAF-RA's enactment refuses to enter the United States thereafter. The district court's judgment of October 25, 2002, is hereby AFFIRMED. . A money-remitting business accepts currency from customers and, for a fee, transfers the money through various banks to the customers' designated beneficiaries, often in foreign countries. See generally United States v. Dinero Express, Inc., 313 F.3d 803, 805 (2d Cir.2002). At the time of the UFF search, Texas law required money-remitting businesses to be licensed pursuant to provisions of the Currency Exchange Act of the Texas Banking Code, now recodified in the Texas Finance Code. See Tex. Civ.Code Ann. § 350 (Vernon 1996) (recodified as Tex. Fin.Code § 153.101-.117, .401). In 1999, Ms. Arias pleaded "no contest" and was found guilty by a Texas state court on two felony counts of falsely representing herself to be the owner of UFF. . Evidence to the contrary was offered at the Ortiz trial by prosecution witness Monica Gal-lardo, who testified to meeting Stella Collazos in New Jersey in the early 1990s in connection with Ms. Collazos's efforts to establish a money transmitting business in that state. For purposes of this appeal, we assume ar-guendo, as the district court did in ruling on the § 2466 motion, that Ms. Collazos has not been in the United States since 1977. . Strassheim discussed who qualified as a "fugitive" for purposes of interstate extradition rather than disentitlement. The concept of a "fugitive" in that context has itself been statutorily modified as states have adopted the Uniform Criminal Extradition Act of 1936, Section 6 of which provides "an exception to the general rule that an accused is not a fugitive from justice and may not be extradited if he was not physically present in the demanding state when the offense was committed." See 31A Am.Jur.2d Extraditions § 29 (2002) (footnotes omitted). . Ms. Collazos submits that at a forfeiture trial she would have offered expert accountant opinions that the money seized from the Prudential Accounts could not be traced to criminal activity. It is dubious that such testimony would have sufficed to carry Ms. Col-lazos's burden. As the district court concluded from its review of the Ortiz trial transcript, considerable direct evidence established that Ms. Collazos "laundered narcotics proceeds" through her remitting business and that "the defendant-in-rem funds are directly traceable to that same money laundering scheme." United States v. Contents of Account Number 68108021, 228 F.Supp.2d at 442. Notably, Lucia Ramirez testified to laundering approximately $650,000 as it was transmitted from BankAtlantic to New York in May 1996 to help Ms. Collazos conceal the money from investigators. Even if the web of preceding transfers was sufficiently complex to preclude an accountant, working only with financial records, from tracing the source of the seized money, the fact remains that Ms. Collazos presumably had personal knowledge of such source, and her failure to submit herself for deposition with respect to this and other points would have supported an adverse inference as to the money's criminal origins. See generally United States v. 4003-4005 5th Ave., 55 F.3d 78, 83 (2d Cir.1995) (noting that civil forfeiture claimant who invokes Fifth Amendment is not freed from obligation to meet his burden of proof).

459 U.S. 1021

C. A. 5th Cir. Certiorari denied.

201 F.3d 214

OPINION OF THE COURT SCIRICA, Circuit Judge. Defendant William Thayer appeals his jury conviction and sentence. William Thayer and his wife and co-defendant Josephine Thayer (who has not appealed her conviction or sentence) were convicted on twenty counts of criminal liability for willful failure to pay over federal withholding and F.I.C.A. taxes in violation of 26 U.S.C. § 7202 and 18 U.S.C. § 2; willful filing of false claims against the government, in violation of 18 U.S.C. § 2,152; and willful concealment of bankruptcy-estate assets, in violation of 18 U.S.C. § 2, 152. We will affirm the convictions, but will vacate the judgment of sentence and remand for further proceedings consistent with this opinion. I. Background A. Facts William and Josephine Thayer were sole owners of two corporations, Mobile Inmate Systems Corp. (MIS) and Equipment Leasers of Pennsylvania, Inc.(ELOP). MIS and ELOP both maintained corporate accounts at First Lehigh Bank, as did two other companies owned and operated by the Thayers. In the late 1980s or early 1990s First Lehigh Bank had asked Thayer to consolidate the funds of all four of his companies into one account maintained in MIS' name ("consolidated MIS account"). According to CPA Robert Gillespie, who testified for the Thayers at trial, both MIS and ELOP deposited money into the consolidated MIS account consistent with the bank's request. Both MIS and ELOP accurately reported their employee federal withholding and F.I.C.A. taxes in IRS Form 941, Employer's Quarterly Federal Tax Return under I.R.C. § 6672(a). But from 1991 to 1993, MIS failed to pay over the federal withholding and F.I.C.A. taxes withheld from employees' wages in ten quarters. From 1991 to 1994, ELOP failed to pay over the federal withholding and F.I.C.A. taxes withheld in eleven quarters. In July 1991, William Thayer signed IRS Form 2751, "Proposed Assessment of 100 Percent Penalty," accepting personal responsibility for unpaid tax liability and civil penalties for MIS' delinquent Form 941 taxes for two quarters in 1991. In June 1992, the Thay-ers signed IRS Form 2751 for ELOP's unpaid taxes for the second and fourth quarters of 1991, acknowledging the same personal responsibilities with regard to ELOP. On their personal income tax returns (IRS Forms 1040) for 1991,1992, and 1993, the Thayers reported negative or very small adjusted gross income based on losses carried forward and requested refunds for all or most of the money that had been withheld from their salaries in those years. Josephine Thayer testified she expected the IRS to automatically apply the refunds toward the unpaid withholding taxes and never expected to receive a cash payment. No money was sent to the Thayers. In 1988 William Thayer bought a condominium in Atlantic City. Because he could not meet the purchase price at closing, the deed was held in escrow and Thayer commenced payments toward the purchase price. The sales agreement and deed listed William Thayer as grantee. Thayer made the first two payments on his personal checks, with "Loan to ELOP" written as notations. Subsequent payments were made from the MIS corporate checking account at First Lehigh Bank. At trial, Josephine Thayer testified that the condominium was bought for ELOP's business. CPA Gillespie testified that ELOP had sufficient money in the consolidated MIS account to cover the payments. In 1995, the condominium seller provided a new deed, which stated in one place that Thayer was the grantee and in another that Atlantic County Investments Inc. was the grantee. In late 1996, the Thayers moved into the condominium. In 1991, MIS petitioned for Chapter 11 bankruptcy. There were 24 creditors, all unsecured, including the IRS and the Pennsylvania Department of Revenue. During the Chapter 11 proceedings, ten payments were made from the consolidated MIS account at First Lehigh Bank for the Atlantic City condominium, totaling approximately $170,800. MIS did not file reports of its operating expenses as required by 11 U.S.C. § 704(8). B. Procedural History The Thayers were indicted on four clusters of charges and convicted by a jury on several counts. In Counts 1-21, the Thay-ers were charged with willful failure to pay over withheld taxes on behalf of MIS (ten quarters, Counts 1-10) and ELOP (11 quarters, Counts 11-21) in violation of I.R.C. § 7201 and 18 U.S.C. § 2. The Thayers were found guilty on the counts charging nonpayment of taxes for the quarters in which trial testimony established the companies had positive cash balances at some point during the quarter. The Thayers were acquitted of willful evasion of income taxes in. violation of I.R.C. § 7201 and 18 U.S.C. § 2 (counts 22-24). The government charged the Thayers' corporations had paid for their personal living expenses by making payments on the condominium, thus providing the Thayers with unreported income. The Thayers were charged with willfully filing false claims (for tax refunds) against the United States in violation of 18 U.S.C. § 287 and 2 (counts 25-27). The government contended the Thayers had submitted claims for tax refunds with knowledge that MIS and ELOP owed taxes for which they were personally responsible. The jury found the Thayers guilty on all these counts. The Thayers were also charged with willful concealment of bankruptcy-estate assets in violation of 18 U.S.C. § 152 and 2 (Counts 28-37). At issue were the payments made for the condominium in Atlantic City out of the consolidated MIS account. The government contended those payments were made with MIS money, and were concealed from the creditors in MIS' bankruptcy proceedings. The Thay-ers countered that the money, while drawn from the consolidated MIS account, was ELOP's money, not MIS'. The jury found the Thayers guilty on all these counts. The Thayers filed a motion for acquittal under Fed.R.Crim.P. 29(c) and a motion for a new trial under Fed.R.Crim.P. 33, both of which the District Court denied. At sentencing, the court grouped the tax and bankruptcy counts separately. On the bankruptcy counts, two points were added to William Thayer's base offense level for violation of a judicial process under U.S.S.G. § 2Fl.l(b)(3)(B). Although Thayer's offense level was 19, the court departed downward six levels. With a criminal history category of III, Thayer's sentencing range was 18-24 months. The court imposed an 18 month sentence, plus three years supervised release and restitution of $149,355. II. Jurisdiction and Standard of Review The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Where the issues raised on appeal are preserved at trial, or through a timely motion for acquittal under Fed.R.Crim.P. 29(c), we will overturn a jury verdict "only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt...." United States v. Anderson, 108 F.3d 478, 481 (3d Cir.1997) (internal quotation marks and citations omitted). But issues on appeal which were not raised before the District Court, we will review for plain error. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A conviction based on insufficient evidence is plain error only if the verdict "constitutes a fundamental miscarriage of justice." United States v. Barel, 939 F.2d 26, 37 (3d Cir.1991). To the extent that Thayer's argument raises issues of statutory interpretation, we will exercise plenary review. See United States v. Parise, 159 F.3d 790, 794 (3d Cir.1998); United States v. Hayden, 64 F.3d 126, 128 (3d Cir.1995). III. Discussion A. Withholdings Thayer appeals his conviction for violations of I.R.C. § 7202, arguing as a matter of law he could not be found guilty of the withholding tax offenses charged. I.R.C. § 7202 penalizes "[a]ny person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax...." Thayer claims § 7202 is inapplicable because he was not a person required to pay over withheld taxes and because he truthfully accounted for the unpaid taxes. 1. Person Required to Pay Over Tax As noted, only a "person required under this title to collect, account for, and pay over" withholding taxes is criminally liable under § 7202. Thayer argues that only employers such as MIS and ELOP who are required to withhold employees' taxes under I.R.C. § 3402-03 qualify. Thayer contends he was merely an officer and part-owner of the corporations, and not an "employer" as defined by the Internal Revenue Code. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. I.R.C. § 6672(a), applying the same language in § 7202, imposes civil penalties on "any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax." In Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978), the Supreme Court held that § 6672(a) applies to corporate officers or employees responsible for the collection and paying over of withholding taxes. See id. at 244-45, 98 S.Ct. 1778. Although the government in Slodov sought only civil penalties, the Court stated that persons civilly liable under § 6672(a) could also be held criminally liable under § 7202. See id. at 245, 247, 98 S.Ct. 1778. Thayer urges us not to follow this apparent dicta in Slodov. He contends that a corporate officer is a "person" for purposes of § 6672(a) only because § 6671(b) specifies that the term "person," as used in I.R.C. ch. 68, subchapter B, encompassing § 6671-6724, "includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." But for purposes of § 7202, the term "person" is defined by identical language. See I.R.C. § 7343 ("The term 'person' as used in this chapter [I.R.C. ch. 75, encompassing § 7201-7344], includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.")- Therefore, Thayer, as the president and majority owner of MIS and ELOP, was properly charged and convicted as a "person" under § 7202. 2. Truthful Accounting Thayer contends the statute imposes criminal liability only on one who neither accounts for nor pays over withholding taxes. Since he did account for the withheld funds, Thayer argues the evidence was insufficient to convict him under § 7202. As noted, § 7202 applies to one who "willfully fails to collect or truthfully account for and pay over" employees' income taxes. Thayer and the government both interpret this language to criminalize either of two acts: (1) willful failure to collect employees' income taxes or (2) willful failure to truthfully account for and pay over withheld taxes. Because Thayer accounted for the withheld taxes by reporting the withholdings on the corporations' quarterly tax returns, he can be convicted only under the second prong. Therefore, the question is whether a person who collects and accounts for but does not pay over taxes has failed to account for and pay over those taxes. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. The Court of Appeals for the Second Circuit faced the identical question and, relying on the reasoning in United States v. Brennick, 908 F.Supp. 1004 (D.Mass.1995), ruled that § 7202 requires employers to both account for and pay over the taxes. The court held the plain language of the statute supported this reading: " 'The phrase "truthfully account for and pay over" is . unambiguously conjunctive. A person who was required to "truthfully account for and pay over" a tax would be required to do both things to satisfy the requirement.' " United States v. Evangelista, 122 F.3d 112, 121 (2d Cir.1997) (quoting Brennick, 908 F.Supp. at 1016) (omission in original). The court also noted that a contrary interpretation " 'would result in a greater penalty for one who simply failed to collect trust fund taxes than for one who collect[ed] them and, as is charged here, used them for his own selfish purposes ., so long as he notified the IRS that he had collected the tax. That Congress intended to make such a distinction is simply inconceivable.'" Id. at 121 (quoting Brennick, 908 F.Supp. at 1017) (omission in original). We agree. Thayer points out that, as the Second Circuit interpreted § 7202, the phrase "willfully fails to . truthfully account for and pay over" has the same meaning as "willfully fails to . truthfully account for or pay over," arguing that Congress might have exempted those who account for but do not pay over withholding taxes to encourage reporting, thereby facilitating collections. Conceding ambiguity, Thayer seeks to rely on the rule of lenity. See, e.g., United States v. Turcks, 41 F.3d 893, 901 (3d Cir.1994). But "[t]he simple existence of some statutory ambiguity . is not sufficient to warrant application of th[e] rule [of lenity], for most statutes are ambiguous to some degree.... The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended." Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911; 141 L.Ed.2d 111 (1998) (internal quotation marks and ellipses omitted). Thayer suggests a rationale why Congress might have penalized more severely those who neither report nor pay over withholding taxes than those who report but fail to pay over the taxes, but does not convincingly answer the Second Circuit's telling analysis: that on Thayer's reading, those who collect the taxes and spend them on personal expenses, effectively stealing the tax moneys, will receive no criminal penalties, whereas those who never collect the taxes at all face criminal sanctions. We agree with the Court of Appeals for the Second Circuit that Congress could not plausibly have intended Thayer's reading of the statute. We also note the title of a section can assist in resolving ambiguities. See I.N.S. v. National Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991). Section 7202 is entitled, "Willful failure to collect or pay over tax," suggesting the section covers willful failure either to collect or to pay over the taxes. For the reasons stated, we hold Thayer was properly convicted under § 7202 for accounting for but failing to pay over withheld income taxes. B. Bankruptcy Fraud Thayer asserts there was insufficient evidence to convict him of bankruptcy fraud under 18 U.S.C. § 152, contending the condominium payments were not made with MIS money, but rather with ELOP money maintained in the consolidated MIS account. The statute, in relevant part, penalizes one who "knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor...." 18 U.S.C. § 152(1). Although most of the condominium payments came from the consolidated MIS account, Thayer points out that his wife testified the condominium was purchased by ELOP and that CPA Gillespie testified that ELOP had sufficient funds in the consolidated account to cover the condominium payments. But the jury was free to reject Mrs. Thayer's and CPA Gillespie's testimony. See Ranco Indus. Prods. Corp. v. Dunlap, 776 F.2d 1135, 1141 (3d Cir.1985). Although no accountant or other expert witness testified contrary to Gillespie, the jury could have concluded the funds for the condominium payments came from MIS because the checks were drawn from the consolidated MIS account at a time when ELOP maintained a separate account. Thayer also argues there was no evidence he knew he had a duty as president of MIS to report MIS' operating expenses and that such knowledge is required under 18 U.S.C. § 152. But the statute, as noted, penalizes concealment of assets, not failure to file expense reports. There was sufficient evidence from which the jury could have concluded that Thayer's use of MIS funds to make payments on a condominium held in his name was an attempt to hide MIS' assets from the Bankruptcy Court and the creditors. C. Jury Instructions Thayer challenges the jury instructions issued on both the false claims and the bankruptcy fraud charges. When jury instructions are challenged, "we consider the totality of the instructions and not a particular sentence or paragraph in isolation." United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir.1995). The issue is "whether, viewed in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case to the jury." United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir.1995) (internal quotation marks omitted). Because Thayer's objections to the jury instructions were not made at trial, we will reverse only for plain error, which is found "sparingly and only where the error was sure to have had unfair prejudicial impact on the jury's deliberations." Id. at 1268 n. 9 (internal quotation marks omitted). 1. False. Claims Early in its instructions to the jury, the court said, You determine what happened in this case, what the facts were in this case. Always focusing on the key element in all 87 counts which is willfulness. That's where you should focus your attention. Later, the court instructed the jury on the false claims charges: There are four elements, the defendants made a claim against the United States for payment. Defendants knew the claim to be false and fraudulent. The claim was made to a department or an agency of the United States and the defendants acted knowingly and willfully- There are two of the elements which are contested here. There is no question that the defendant made a claim for a refund. And . there is no question that the claim was made to United States. That's element one and element three. Elements two and four are hotly contested.... The Government must prove those elements beyond a reasonable doubt. . The defendants deny those two elements. Therefore the government must prove them beyond a reasonable doubt. . [T]he defendants urge . they didn't have the money to pay the withholding tax and they had been hoping to pay it, or at some time it would be paid, or they would straighten the paperwork out later and the best way to handle it was to seek a refund on the three returns filed. They've made other arguments against the Government on these claims, you'll remember them and assess them.... . If you find that they intended to deceive the government and wanted to get a check, my recollection is that Mrs. Thayer denied that. She said she never really expected to get a check and thought that this was a bookkeeping kind of thing. You need to assess that. Thayer contends the court's instruction implied that the government was not required to prove beyond a reasonable doubt that the Thayers had presented a claim against the United States. The Fifth and Sixth Amendments require the government to prove each element of a criminal charge beyond a reasonable doubt whether or not the defendant presents evidence contesting the element. See United States v. Gaudin, 515 U.S. 506, 509-10, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). When a jury instruction is ambiguous and open to an unconstitutional interpretation, the instruction is error if there is a reasonable likelihood the jury accepted the erroneous interpretation. See Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 2115, 144 L.Ed.2d 370 (1999); Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); Frey v. Fulcomer, 132 F.3d 916, 921 (3d Cir.1997), cert. denied, 524 U.S. 911, 118 S.Ct. 2076, 141 L.Ed.2d 151 (1998). But because we review for plain error, we will reverse only if the ambiguity in the instruction is "sure" to have had a prejudicial effect. Zehrbach, 47 F.3d at 1263 n. 9. In this case, we believe the instruction was accurate and non-prejudicial. Thayer has not contested that the court properly described the elements of the offense. See United States v. Okoronkwo, 46 F.3d 426, 430 (5th Cir.1995) (giving the elements of a § 287 offense as "(1) that the defendant presented a false or fraudulent claim against the United States; (2) that the claim was presented to an agency of the United States; and (3) that the defendant knew that the claim was false or fraudulent"). Instead he argues that his wife's testimony that she thought the government would automatically apply any refund to the Thayers' existing penalty was evidence contesting the first element of the offense charged (filing a claim against the United States), contrary to the District-Court's assertion that this issue was uncontested. We do not agree that Josephine Thayer's testimony, if believed, could establish the Thayers did not present a claim against the United States. Rather, her testimony contested that they acted wilfully and with knowledge that their claim was false and fraudulent. See United States v. Parsons, 967 F.2d 452, 456 (10th Cir.1992) (holding requests for tax refunds are covered by § 287). We hold the District Court's instruction was neither inaccurate nor prejudicial, and in any event was not plain error. 2. Bankruptcy Fraud As noted, Thayer was convicted of concealing MIS' assets from its creditors by using MIS' funds to pay for the Thayers' condominium in Atlantic City, effectively transferring the money from MIS to the Thayers. a. Identity of Bankrupt Corporation At trial, the Thayers argued the money used to pay for the condominium belonged to ELOP, not MIS. The court's charge on these counts was interrupted by a question from a juror: THE COURT: The elements are:.... Two, the defendant fraudulently concealed the property described in the indictment from creditors in the bankruptcy proceedings. The question here is, in the mind of the Government is, . why was MIS's assets being used to buy this condo? . The Thayers' attorneys say no way. [The court reviewed several arguments, including the attorneys' claim] that the funds in the MIS bank account were really not MIS money, but were pooled money perhaps from ELOP or other activities of the Thayer corporations.... Yes? JUROR: Just to be clear, only MIS is in bankruptcy? THE COURT: Your recollection controls and you'll have the bankruptcy papers, but my recollection is that MIS went into bankruptcy first and then perhaps six months to nine months later ELOP went into bankruptcy. Thayer maintains the court's reference to ELOP's bankruptcy suggested to the jury that it could convict if it concluded the Thayers were concealing ELOP's assets, although the indictment charged only concealment of MIS' assets. As we have explained, "[a] federal judge is permitted to summarize and comment upon the evidence.... The court's comments, however, may not confuse or mislead the jury, or become so one-sided as to assume an advocate's position." American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 327 (3d Cir.1985) (ellipsis in original), quoted in Hughes v. Consol-Pennsylvania Coal Co., 945 F.2d 594, 617 (3d Cir.1991). In American Home Assurance, we held the District Court erred during the jury charge by stating that certain expert witnesses had been compensated for their testimony, when there was no such evidence in the record. See 753 F.2d at 326-27. In Hughes, the defendant was accused of fraudulently inducing the plaintiffs to sell land at below-market prices. The District Court told the jury that if the defen dant claimed that plaintiffs' property- could be condemned for a fixed price in the event that plaintiffs refused to sell, the defendant had "lied." 945 F.2d at 617. We found no prejudicial error, because the court accurately summarized the evidence and informed the jury that it did not "have to be influenced" by the court's summary. Id.) see also Haines v. Powermatic Houdaille, Inc., 661 F.2d 94, 95 (8th Cir.1981) (finding no prejudicial error where the trial judge misstated an important piece of evidence but repeatedly cautioned the jury that the court's statements were not evidence). Here, the District Court accurately explained to the jury that the Thayers were charged with using MIS' funds to make payments on the Atlantic City condominium and summarized the Thayers' defense, that the money used belonged to ELOP. In response to a juror's question, the judge accurately described the bankruptcy status of both MIS and ELOP, while reminding the jurors that their recollection, and not the court's, controlled. We find nothing in the court's charge that would have created or contributed to the alleged confusion, much less anything that was sure to prejudice the jury's deliberations. Thayer did not request a curative instruction following the juror's question and the District Court was not obliged to issue one sua sponte. We see no plain error here. b. Transfer of Assets Thayer has a second objection to the bankruptcy concealment instruction. We quote again from the jury charge: Counts 28 through 37 charge[ ] willful concealment of assets from the Bankruptcy Court. The law provides whoever knowingly and fraudulently conceals from the custodians, trustee, marshal or other officer of the bankruptcy [court] charged with the control or custody of property, or from creditors in any case in bankruptcy shall be guilty of a felony. The elements are: One, on or about the date alleged in the indictment, the proceeding in bankruptcy was in existence. That's not in dispute. Two, the defendant fraudulently concealed the property described in the indictment from creditors in the bankruptcy proceedings. And, three, that such property belonged to the estate of the debtor. A person fraudulently conceals property of the estate of a debtor when that person knowingly withholds information or property or knowingly acts for the purpose of preventing the discovery of such property, intending to deceive or cheat a creditor, a trustee, or a custodian or a bankruptcy judge. Fraudulently concealing property of the estate of the debtor may include transferring property to a third party, destroying the property, withholding knowledge concerning the existence or whereabouts of property, or knowingly doing anything else by which the person acts to hinder, delay or defraud any of the creditors. The act of concealment does not depend on the amount or value of the property involved. It is sufficient if a substantial amount of property was knowingly and fraudulently concealed or transferred by the accused as charged in the indictment... . Thayer objects to the court's statement, "It is sufficient if a substantial amount of property was knowingly and fraudulently concealed or transferred by the accused as charged in the indictment," contending the court suggested that simply the transfer of assets, not the transfer of assets with intent to conceal, can justify a conviction. The Thayers were indicted under 18 U.S.C. § 152. The language in the court's jury charge mirrors that of subsection 152(1), making it unlawful to "knowingly and fraudulently conceal[ ] from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor." We believe the charge, viewed in its entirety, correctly stated the law of subsection 152(1). The District Court properly charged fraudulent concealment as an element of the offense, stating that Thayer could be convicted if found to have "knowingly and fraudulently concealed or transferred" MIS' assets, which we have no doubt the jury understood to mean "knowingly and fraudulently concealed or [knowingly and fraudulently] transferred" MIS' assets. The court explained that an act was fraudulent if done as part of an attempt to conceal the debt- or's assets. We hold the District Court properly instructed the jury that Thayer could be convicted only if he transferred MIS' assets with the intent to conceal them. See United States v. Turner, 725 F.2d 1154, 1157 (8th Cir.1984) (approving of jury instructions defining "concealment" for purposes of § 152 to include "not only secreting, falsifying and mutilating . but also . preventing discovery, fraudulently transferring or withholding knowledge or information required by law to be made known"). D. Sentencing Because Thayer's objections to his sentence were raised before the District Court, we review the court's factual findings for clear error and its interpretation of the guidelines de novo. See United States v. Felton, 55 F.3d 861, 864 (3d Cir.1995). 1. Grouping As noted, the District Court grouped the bankruptcy convictions separately from the tax offenses at sentencing. Thayer contends U.S.S.G. § 3D1.2(b) (1998) required the District Court to group all the offenses. Section 3D1.2(b) mandates grouping "[w]hen counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." In this case, we do not believe the first requirement was met, namely that the victims of the crimes be the same. Therefore, we agree with the District Court that grouping under § 3D1.2(b) was inappropriate here. As Thayer concedes, the United States was the only victim of the tax fraud counts, and the IRS was a creditor and therefore a victim of the bankruptcy-assets concealment count. Although MIS had 24 creditors, Thayer notes the sentencing guide lines' commentary explain, "[Generally, there will be one person . identifiable as the victim" because " 'victim' is not intended to include indirect or secondary vic-tims_" U.S.S.G. § 3D1.2(b), comment. (n.2). He argues that the United States was the primary victim and therefore the sole victim for grouping purposes, and the rest of the victims were secondary. According to MIS' Chapter 11 petition, prepared by the Thayers, MIS' federal tax debt at the time of bankruptcy was $480,-000, representing approximately 73% of MIS' total debt and 96% of its debt to priority creditors. Nevertheless, in this case we find there were multiple victims of Thayer's concealment. Grouping is determined according to the primary victim Congress sought to protect in enacting a statute. See United States v. Ketcham, 80 F.3d 789, 793 (3d Cir.1996). 18 U.S.C. § 152 is "a congressional attempt to cover all of the possible methods by which a debtor or any other person may attempt to defeat the intent and effect of the bankruptcy law through any type of effort to keep assets from being equitably distributed among creditors." United States v. Goodstein, 883 F.2d 1362, 1369 (7th Cir.1989) (internal quotation marks omitted); see also Stuhley v. Hyatt, 667 F.2d 807, 809 n. 3 (9th Cir.1982) (holding that Congress' principal objective in enacting § 152 was "to prevent and punish efforts by a bankrupt to avoid the distribution of any part of a viable bankrupt estate"); United States v. Shapiro, 101 F.2d 375, 379 (7th Cir.1939) ("The object of Congress in passing [the predecessor to § 152] was to punish those debtors who, although wanting relief from their debts, did not want to surrender what property there was to creditors."). All creditors benefit from the integrity of the bankruptcy system, which guarantees that to the maximum extent feasible the bankrupt's debts will be repaid. Accepting Thayer's representations in MIS' bankruptcy petition as true, MIS owed .more than $150,000 to 22 creditors (excluding the IRS and the Pennsylvania Department of Revenue), including debts of $26,064, $15,315, and $10,250 to various individual creditors. These are substantial sums, and we cannot describe these creditors as "secondary" victims of Thayer's fraudulent concealment. Cf. United States v. Nazifpour, 944 F.2d 472, 474 (9th Cir.1991) (finding all creditors to be victims of bankruptcy fraud for purposes of U.S.S.G. § 2Fl.l(b)(2)(B), which enhances the sentence of a defendant who defrauds more than one victim). Because the victims of the bankruptcy and tax offenses were not the same, the District Court properly refused to group Thayer's bankruptcy and tax offenses under § 3D1.2(b). 2. Enhancement for Violation of Judicial Process The District Court enhanced Thayer's sentence by two levels for "violation of any judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines.... " U.S.S.G. § 2Fl.l(b)(4)(B) (1998). The District Court relied on the probation office's finding, asserted by the government, that such an enhancement is appropriate whenever a defendant is convicted of concealing assets in a bankruptcy case. Thayer argues the enhancement can be given only when a specific court order is violated. Several courts of appeals have taken the position now advanced by the government. Most have reasoned that a bankruptcy proceeding constitutes a "judicial . process" under § 2Fl.l(b)(4)(B), a process violated by concealment of assets. As the Court Appeals for the Eighth Circuit explained, Lloyd [the debtor] did not violate a specific judicial order, injunction, or decree; however, Lloyd did violate a judicial process by fraudulently concealing assets from the bankruptcy court officers. Lloyd sought protection from his creditors under the shelter of bankruptcy when he filed his Chapter 11 petition. Lloyd then abused the bankruptcy process and hindered the orderly administration of bankruptcy estate by concealing assets. United States v. Lloyd, 947 F.2d 339, 340 (8th Cir.1991) (per curiam); accord United States v. Guthrie, 144 F.3d 1006, 1010-11 (6th Cir.1998); United States v. Messner, 107 F.3d 1448, 1457 (10th Cir.1997); United States v. Welch, 103 F.3d 906, 908 (9th Cir.1996) (per curiam); United States v. Michalek, 54 F.3d 325, 332-33 (7th Cir.1995). Some courts have applied the enhancement on a separate theory, holding the Bankruptcy Rules and Forms constitute orders of the court: Black's Law Dictionary defines the word "order" as follows: "A mandate; precept; command or direction authoritatively given; rule or regulation." The mandate of the Bankruptcy Rules and Official Forms that a debtor truthfully disclose assets and liabilities falls within this definition. Moreover, the mandate is in the context of formal, adversary court proceedings, and Bellew [the debt- or] necessarily knew that he was violating the mandate when he signed the declarations required by Form Numbers 1 and 6. United States v. Bellew, 35 F.3d 518, 520-21 (11th Cir.1994) (per curiam) (footnote omitted); accord Michalek, 54 F.3d at 332-33; United States v. Saacks, 131 F.3d 540, 545 (5th Cir.1997). Several of these courts have emphasized the broad applicability of U.S.S.G. § 2F1.1, the base offense provision for fraud, and the need to punish bankruptcy fraud more severely than other types of fraud: [I]n neither § 2F1.1 nor any other section of the Guidelines is there either a base offense level or an enhancement provision for bankruptcy fraud as such. Consequently, were we to stop with the general sentencing provisions for fraud, we would fail to make any distinction between the most pedestrian federal fraud offense and bankruptcy fraud with all of its implications of a scheme to dupe the bankruptcy court, the trustee, and the creditor or creditors of the debt- or, i.e., the entire federal system of bankruptcy. Saacks, 131 F.3d at 543-44; accord Guthrie, 144 F.3d at 1010 ("[T]he Sentencing Guidelines' fraud provision is a very broad guideline encompassing a wide variety of offenses; because bankruptcy fraud involves a higher level of culpability due to its deception of the court, the offense warrants a greater punishment."); Michalek, 54 F.3d at 332. Although these arguments have merit, we are not convinced. Instead we are persuaded by the analyses of the Courts of Appeals for the First and Second Circuits. See United States v. Shadduck, 112 F.3d 523, 530 (1st Cir.1997) (reaching only the claim that the Bankruptcy Rules and Forms constitute orders of the court); United States v. Carrozzella, 105 F.3d 796, 800 (2d Cir.1997) (expressing "skepticism" about the enhancement of bankruptcy fraud cases under § 2Fl.l(b)(4)(B), but ultimately reversing on other grounds). Both courts relied in part on the commentary to § 2Fl.l(b)(4)(B), which, in its current form, explains that the section provides an adjustment for violation of any judicial or administrative order, injunction, decree, or process. If it is established that an entity the defendant controlled was a party to the prior proceeding, and the defendant had knowledge of the prior decree or order, this provision applies even if the defendant was not a specifically named party in that prior case. U.S.S.G. § 2F1.1, comment, (n.6). The comment's reference to "the prior decree or order" seems to suggest that the drafters expected this subsection to be applied only to defendants who violated an order arising out of a previous judicial proceeding, although this is unclear. But the crucial inquiry here appears to focus on the proper interpretation of the term "judicial process." While this term could be read to encompass an entire judicial proceeding, e.g. the entire bankruptcy proceeding, it seems more likely it was intended to be applied in a more circumscribed manner. As the Second Circuit reasoned, "Violation" strongly suggests the existence of a command or warning followed by disobedience. This analysis in turn suggests that the term "process"' — 'the command or warning violated — is used, not in the sense of legal proceedings generally, but in the sense of a command or order to a specific party, such as a summons or execution issued in a particular action. This narrower reading of Section [2Fl.l(b)(4)(B) ] is also consistent with the general practice— known as ejusdem generis — of construing general language in an enumeration of more specific things in a way that limits the general language to the same class of things enumerated. In the present circumstances, the word "process" follows "injunction, order, [or] decree" and is most easily read in the narrower sense of a command or order issued to a specific person or party. Carrozzella, 105 F.3d at 800 (citations omitted, second alteration in original). We agree. We also agree with the Court of Appeals for the First Circuit that the Rules and Forms of the Bankruptcy Court in the sentencing context are not judicial orders, injunctions, decrees, or processes. The Bankruptcy Rules and Forms have more in common with statutes and procedural rules of general application than with orders of the court, which are directed to identified parties and indicate in specific terms what those parties are required to do. See Shadduck, 112 F.3d at 530. In reaching its holding, the Court of Appeals for the First Circuit looked to the commentary guidelines for assistance, which provide: A defendant who has been subject to civil or administrative proceedings for the same or similar fraudulent conduct demonstrates aggravated criminal intent and is deserving of additional punishment for not conforming with the requirements of judicial process or orders issued by federal, state, or local administrative agencies. U.S.S.G. § 2F1.1, comment, (backg'd.). The Court of Appeals for the First Circuit found the commentary supported its conclusion that the violation of a bankruptcy rule does not require an enhancement under U.S.S.G. § 2Fl.l(b)(4)(B): The accompanying exemplar describes a defendant who has been enjoined in a prior proceeding from engaging in certain conduct, but who violated the injunction anyway by committing the fraud for which he was awaiting sentence. (Citation omitted). Thus, the commentary makes clear that the rationale for the enhancement is to redress the "aggravated criminal intent" inherent in violating a prior order specifically enjoining the defendant, or any entity the defendant controlled, from engaging in fraudulent conduct which formed the basis for the offense of conviction. U.S.S.G. § 2F1.1, comment, (backg'd). Shadduck, 112 F.3d at 529. We concur. Nothing in the guidelines suggests the drafters intended as a general matter to sentence bankruptcy fraud more strictly than other types of fraud. Therefore, we find the enhancement granted here is not appropriate under § 2Fl.l(b)(4)(B). S. Harmless Error The government contends that if Thayer's sentence was inappropriately en hanced under § 2F1.1(b)(4)(B), the error was harmless. Thayer's offense level, as calculated by the District Court, was 19. The court departed downward six levels to offense level 13, resulting in a sentencing range of 18-24 months, and sentenced Thayer to the minimum, 18 months. The government's assertion of harmless error is based on United States v. Vitale, 159 F.3d 810 (3d Cir.1998), in which the District Court refused to group the defendant's convictions at sentencing but gave a "substantial" downward departure. We found no error in sentencing but indicated that any error would have been harmless because the defendant "has shown nothing in the record to support his view that the district court would have departed yet further had grouping been utilized." Id. at 815; see also United States v. Dutcher, 8 F.3d 11, 12-13 (8th Cir.1993) (declining to remand after finding the District Court selected an inappropriately high sentencing range because the court departed downward below the proper range and "we are not persuaded that the District Court necessarily would have imposed a lower sentence"). The government contends remand is unnecessary here because Thayer cannot demonstrate the District Court would grant another six-level downward departure to offense level 11, rather than departing downward by four levels and placing Thayer in offense level 13 again. The government also argues Thayer cannot establish his sentence would be reduced on remand even if the District Court were to grant a six-level downward departure, because Thayer's sentencing range at offense level 11 would be 12-18 months, permitting the District Court to re-impose an 18-month sentence. We are skeptical of the government's interpretation which appears to assign to defendants the burden of rebutting assumptions of harmless error in these kinds of cases. 18 U.S.C. § 3742(f)(1) specifies, "If the Court of Appeals determines that the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case.... " In Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992), the Supreme Court addressed the possibility of harmless sentencing error in light of this statutory language. The District Court there departed upward based on two factors, one of which the Court of Appeals for the Seventh Circuit held' to be error. The Court of Appeals nevertheless affirmed, finding the remaining ground cited by the District Court was sufficient to justify the departure. The Supreme Court agreed that one of the grounds for the departure was impermissible but remanded to the Court of Appeals for reconsideration of the decision not to remand for re-sentencing, explaining, Section 3742(f)(1) does not call for a remand every time a sentencing court might misapply a provision of the Guidelines; rather, remand is required only if the sentence was "imposed as a result of an incorrect application" of the Guidelines . When a district court has intended to depart from the guideline range, a sentence is imposed "as a result of' a misapplication of the Guidelines if the sentence would have been different but for the district court's error.... We conclude that the party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed. If the party defending the sentence persuades the court of appeals that the district court would have imposed the same sentence absent the erroneous factor, then a remand is not required.... Id. at 202-03, 112 S.Ct. 1112 (citations omitted). In United States v. Tello, 9 F.3d 1119 (5th Cir.1993), the Court of Appeals for the Fifth Circuit held the District Court had erred in failing to reduce the defendant's offense level by one point under § 3El.l(b) for acceptance of responsibility, causing the court to apply the wrong sentencing range to the defendant. The government argued the sentencing error had been harmless because the sentence the District Court imposed was within both the sentencing range the District Court actually used and the range it should have used. The Court of Appeals held the government had the burden of establishing harmless error under Williams: The [Williams] Court pronounced that the finding of an incorrect application of the Guidelines shifts the burden to the proponent of the sentence — whether that be the defendant or the government — to "persuade! ] the court of appeals that the district court would have imposed the same sentence absent the erroneous factor." . [W]e appl[y] the Court's Williams standard in determining generally whether a misapplication of the Guidelines automatically requires remand for resentencing. Id. at 1129 (second alteration in original). Because the government had not met its burden, the court remanded for re-sentencing. See id. at 1131. Under Williams, we remand "unless [we] conclude, on the record as a whole, that . the error did not affect the district court's selection of the sentence imposed!,]" a standard the government cannot meet here. Nor can we agree that Thayer "has shown nothing in the record" supporting the conclusion that the District Court, on remand, would impose a lesser sentence. The District Court explained its downward departure at sentencing: Both Thayers were very active in their community. Both Thayers were entrepreneurs trying to generate jobs and economic development in this area_[T]hey were the victims of incredible bad luck, coupled with some incredible bad judgment in their business operations. The seriousness of the offense in regards to Mr. Thayer precludes me from imposing a probationary sentence. Personally, I like you Mr. Thayer, but this has just gone too far and is too serious and it[']s hurt the taxpayers too much. According to the government, the District Court considered 18 months incarceration the proper sentence in Thayer's case and departed downward six levels in order to obtain that sentence. That may be so, but it is not clear from the record. Although the court stated that it would not impose a sentence of probation, it might have believed Thayer's case warranted a six-level departure and then imposed a sentence at the bottom of the range. As has been noted, a sentencing court sometimes will approach the Guidelines with a "tentative view" of the sentence appropriate to the case before it and impose that sentence if permissible under the Guidelines but may also select a sentence based on its position within the range specified by the Guide-fines. See United States v. Bermingham, 855 F.2d 925, 934-35 (2d Cir.1988). If Thayer's interpretation of the District Court's explanation for its departure is correct, the court might depart downward by the same six levels on remand and again select the shortest sentence in the resulting range, 12 months incarceration. We cannot determine on appeal which interpretation of the District Court's remarks is accurate, but the record support for the possibility Thayer would have received a shorter sentence but for the § 2Fl.l(b)(4)(B) enhancement is sufficient to require remand. The government did not meet its burden here of demonstrating harmless error. IV. Conclusion For the reasons given, we will affirm Thayer's convictions but will vacate the judgment of sentence and remand for further proceedings consistent with this opinion. . William Thayer and Josephine Thayer owned 80% and 20% respectively and were President and Secretary respectively of both corporations. . MIS had 28 employees; ELOP had 16 employees. . The government has argued the motions were untimely. But the District Court noted that the Thayers had requested, and were granted, additional time to file. United States v. Thayer, 1998 WL 195940, at n. 2 (E.D.Pa.1998). . Mrs. Thayer was sentenced to five years probation, . Following the denial of the motions, Thayer obtained different defense counsel. In his appeal to this Court, Thayer raises issues not raised in the earlier Rule 29(c) and Rule 33 motions. Our standard of review will vary accordingly. . The Code defines "employer" as "the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person...." I.R.C. § 3401. "Employee" is defined to include corporate officers. See id. .We have applied the Court's holding in assessing civil penalties under § 6672 many times. See, e.g., Greenberg v. United States, 46 F.3d 239, 242-44 (3d Cir.1994); Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921, 927 (3d Cir.1990). . Because this issue was properly raised before the District Court, we will review for sufficiency of evidence, and will affirm unless we find that the record contains no evidence from which the jury could find guilt beyond a reasonable doubt. See Anderson, 108 F.3d at 481. . Mr. Marvin, president of Lehigh Bank at all times relevant herein, testified that the ELOP account contained substantial funds during the time when MIS was in Chapter 11 bankruptcy. . 18 U.S.C. § 287 and 2. . Thayer also makes a separate objection, that the trial judge mischaracterized Josephine Thayer's testimony. After review, we reject his argument. . The Court's charge continued: The question here is, in the mind of the Government is, since this came out of the MIS checking account and since MIS was in a Chapter 11 reorganization at that time, what was MIS's asset, why was MIS's assets being used to buy this condo? The Government suggests that it was fraudulent in that there was an attempt here to conceal the assets, to transfer them out of the bankruptcy estate away from the creditors and to keep the creditors from enjoying the benefits of the amounts of money that were transferred to Kalustyan Corporation. The Government says guess what happened, the Thayers end up owning a condo, the Government suggests that the Thayers end up using a condo in Atlantic City now owned by a corporation about which we have little information. And the Government suggests that this was intentional, deliberate and fraudulent. And the Government says to you that its proved that beyond a reasonable doubt. The Thayers' attorneys say no way. They say that the condo was a corporate asset, intended to be a corporate asset and was used in corporate business substantially. That weekend use by family members is something to be expected of corporate assets and is certainly not fraud by the furth- est stretch of the imagination. They say that there was an assignment of Thayer's interest in this condo to the ELOP Corporation and they say finally that the funds in the MIS bank account were really not MIS money, but were pooled money perhaps from ELOP or other activities of the Thayer corporations and was not a diversion of assets from the Bankruptcy Court. . The court quoted subsection 152(1) almost verbatim at the beginning of the charge. . Because Thayer has not established that there was a single victim, we do not need to reach the common scheme or plan element required for grouping. . Of course, violation of a specific order in a bankruptcy proceeding could constitute a violation of "judicial process" as contemplated in § 2F1.1(b)(4)(B). Like the Court of Appeals for the First Circuit, we do not foreclose the district courts' option to depart upward under U.S.S.G. § 5K2.0 in appropriate cases of bankruptcy fraud, see id. at 530 n. 12.

3 B.T.A. 66

DECISION. The determination of the Commissioner is approved.

10 B.T.A. 303

OPINION. MoeRis: Only that portion of the deficiency resulting from the disallowance of $5,120.15 is in controversy, which amount is included in the $19,449.80 deduction taken by the petitioner in its return as an ordinary and necessary expense. The petitioner was unable to segregate the particular items disallowed but alleges that all the items making up the deduction claimed were properly deducted. In proof thereof the petitioner called upon its superintendent, a man who had been engaged in manufacturing human hair press cloth for a period of 20 years, who testified with respect to the various purchases shown in the machinery, supply and repair account. We are satisfied from his testimony that these purchases were for ordinary and necessary repairs and were not in the nature of capital additions. Tie testified item by item as to the parts and repair work purchased from the numerous concerns making up the total expenditure of $19,449.80. His detailed testimony showed the character of the purchases which were made and charged to the machinery, supply and repair account to be as follows: Drayage, welding, castings, heddle wires, spinning supplies, belting, weaving supplies, leather aprons, supply parts for machine shops, sprockets, wheel chains, canvas aprons, conveying aprons, loom supply parts, parts for automatic feed box, leather sectional roller supplies, reeds for use in looms, pipes or tubes for creels to wind yarn on, parts for spinning frames such as flyers, wipers, weights, and gears, bolts, screws, pulleys, electrical equipment such as fuses for motors, supply parts for copper winding machine, supplies for retwisting department, window repairs, bushings, shuttle and bobbin head repairs, and supply parts for the sizing machine. Due to the high speed type of machinery used, a 24-hour operation and the character of labor available, such purchases and repairs were of frequent occurrence. As to some few items the superintendent was unable to recall the character of the purchase, but the evidence shows that when additions were made, they were charged to some permanent investment account and not to the account in question. We are of the opinion that the entire amount of $19,449.80 constitutes an allowable deduction. Judgment will be entered on 10 days' notice, under Bule 50.

32 Cust. Ct. 146

Ford, Judge: The two suits listed in schedule "A," hereto attached and made a part hereof, were filed by the plaintiffs seeking to recover certain sums of money alleged to have been illegally exacted as customs duties upon importations of silk articles from Japan. The collector classified this merchandise as handkerchiefs, hemmed, valued at not more than $5 per dozen, and levied duty thereon at the rate of 60 per centum ad valorem under the provisions of paragraph 1209 of the Tariff Act of 1930. Plaintiffs claim said merchandise to be properly dutiable at 35 per centum ad valorem under paragraph 1210 of said act, as modified, infra. The involved paragraphs are as follows: Paragraph 1209 of the Tariff Act of 1930: Handkerchiefs and woven mufflers, wholly or in chief value of silk, finished or unfinished, not hemmed, 55 per centum ad valorem; hemmed or hemstitched, 60 per centum ad valorem. Paragraph 1210 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802: Clothing and articles of wearing apparel of every description, manufactured wholly or in part, wholly or in chief value of silk, and not specially provided for, 35 % ad val. At the trial of this case, it was agreed between counsel that the involved articles were valued at not more than $5 per dozen, and that they are hemmed. It was also agreed between counsel that the article marked exhibit 1-a is representative of the merchandise described on the invoice as silk habutae squares, 17 inch, Grade A, 5 momme, except that the merchandise in controversy does not have any drawn work on the corners as does exhibit 1-a; that the article marked exhibit 1-b is representative of the merchandise described on the invoice as 4 momme, ombre; and that the merchandise marked exhibit 1-c is representative of the merchandise described on the invoice as 17% inch, 4 momme, prints. There were also admitted in evidence as collective illustrative exhibits 2-a, 2-b, and 2-c, three articles representative of 3-momme, 17%-inch, habutae squares, the purple article being the solid color; the green article, the ombre shade; and the multicolored article, the print. Collective exhibit B was admitted in evidence as representing the merchandise in exhibits 1-a, 1-b, and 1-c. There was also admitted in evidence a group of colored photographs depicting the various uses of the involved merchandise. These were marked illustrative exhibits 4, 5, 7, 8, 9, 10, 12, 13, 14, and 17. A shadow box was admitted in evidence as exhibit 3. Exhibit 6, illustrative exhibits 11 and 15, and exhibit 16 were admitted in evidence as illustrating the uses of the involved merchandise. Collective illustrative exhibit 18 consists of three of the involved articles knotted together to form a sun halter, as depicted in illustrative exhibit 17. Illustrative exhibit 19 shows a use of one of the involved articles, as depicted by illustrative exhibit 12. Collective illustrative exhibit 20 shows another use for the involved articles, as illustrated by Miss Avedon in illustrative exhibit 12. Exhibit 21 was admitted in evidence as illustrating an article made from merchandise similar to the involved articles. Illustrative exhibits 22 and 23 are pallettes used in displaying the involved merchandise. Exhibit 24 shows merchandise such as or similar to that here involved being used to hold sandals or other footwear on the foot. Exhibit 25 is a trade catalog of The Specialty House, Inc., one of the plaintiffs herein, in which certain items were marked with an "X" which are like the involved articles. Exhibit 26 was admitted in evidence as illustrating an article which is referred to as a scarf in the trade. Collective exhibit 27 is seven sets of orders taken from the commercial files of The Specialty House, Inc. Collective exhibit 28 is a price list of Baar & Beards, Inc., of Chicago, Ill., on which has'been placed an "X" to indicate merchandise similar to that here involved. Exhibit 29 is a piece of literature circulated by Baar & Beards, Inc., and the article similar to that here involved has been marked with an "X." Exhibit 30 is a color card circulated by Baar & Beards, Inc. Collective exhibit B was admitted in evidence as being similar to exhibits 1-a, 1-b, and 1-c, except they are of better quality and heavier in weight. Collective exhibit 31 was admitted in evidence as representative of merchandise offered and sold by one witness as silk handkerchiefs. Exhibit 32 was admitted in evidence as representing merchandise which one witness sold as silk handkerchiefs throughout the United States in the early 1930's. In addition to the above, the record consists of 451 pages, comprising the testimony of 11 witnesses for the plaintiffs and 5 witnesses for the defendant. A detailed narration of the testimony in this case would extend this opinion to unwarranted length. Based upon the record in this case, it is the contention of counsel for the plaintiffs that: 1) In physical characteristics, uses and in name the imported articles are scarfs and not handkerchiefs. 2) The commercial designation of the term "handkerchiefs" as used in Paragraph 1209, was definite, uniform and general throughout the United States on and prior to June 17, 1930. It did not include articles like those at bar. Therefore, they are not dutiable as handkerchiefs. 3) The imported articles are known commonly and commercially as scarfs and are dutiable as wearing apparel. Counsel for the defendant states the issue and its contention as follows: THE ISSUE Whether the involved articles are silk handkerchiefs within the purview of paragraph 1209, supra, as classified, or are silk wearing apparel, not specially provided for, under paragraph 1210, supra, as claimed. THE GOVERNMENT'S CONTENTIONS 1. The evidence of use, how sold, and where sold, does not establish that the articles at bar are not handkerchiefs within the meaning of that term, as set forth in the case of Geo. S. Bush & Co., Inc. v. United States, 29 Cust. Ct. 395, Abstract 56928. 2. The legislative history bears out the classification of the Collector to be correct. 3. Plaintiffs have failed to establish a commercial designation different from the common meaning of the term handkerchief. William J. Norris, testifying for the plaintiffs, stated that he was the examiner of merchandise at the port of New York who examined the involved merchandise and described it for the collector as hemmed silk handkerchiefs; that he is familiar with silk mufflers and that exhibits 1-a, 1-b, and 1-c do not represent woven silk mufflers as they are of a different size and weight; and that the merchandise represented by said exhibits is used entirely by women and girls. Later in the trial, this witness made it clear that his knowledge of the use of this merchandise covered a period of only 2}i years. Mortimer L. Taylor, called by counsel for plaintiffs, stated that he was vice president of The Specialty House, Inc., one of the plaintiffs herein, manufacturer, importer and dealer in ladies' scarves, neckwear, various accessories, and novelty items; that his firm sells at wholesale; that his duties include executive and administrative details, as well as foreign buying, and supervision of styling and manufacturing, both domestically and foreign. The witness was directly responsible for the manufacture and production of many articles in the United States and was responsible for all foreign purchasing. Witness Taylor stated that he had been engaged in the textile business from his youth; that he had handled the selling and credit work of his father's silk mill in New York; that he opened a second silk mill and installed a superintendent; that he then returned to Massachusetts and started another mill, where he worked until 1939; that he was then employed for 14 or 15 months as manager of a newly organized rayon department of another company; that he then went into the textile brokerage business until he was employed by the Government as a textile expert in the Office of Price Administration; that, in 1943, he was called to active duty with the United States Army and discharged in 1946, when he joined The Specialty House, Inc. The witness further testified that in his present position he is required to travel extensively, particularly to the European fashion centers; that it is a part of his present duties to make a study of style trends; that, based upon his studies and experience, he had found that articles like exhibits 1-a, 1-b, and 1-c became significant in the wholesale market about 1948. Through this witness, the colored photographs, heretofore alluded to, were introduced in evidence, and he was able to demonstrate the various uses of exhibits 1-a, 1-b, and 1-c with two living models and the colored photography. The value of this evidence is more vividly demonstrated by use of the photographs in connection with the explanations given by this witness than is possible to portray in words. " ' The witness also testified that exhibits 1-a, 1-b, and 1-c have been sold by his firm for the past 4 or 5 years; that the proper stocking of them requires 15 or 20 different colors and 12 or 15 different prints, each print being carried in 4 or 6 color combinations; that the ultimate user of the article was purchasing it for its color value. So important was this item of color, that salesroom displays were designed to display the color value of these articles. These are in evidence as illustrative exhibits 22 and 23. This witness also testified that The Specialty House, Inc., sold this merchandise to jobbers, retail stores, and national chain stores, such as Sears, Roebuck; Montgomery Ward; S. S. Kresge; and J. C. Penney. The department stores in its accounts were located throughout the United States, and its mailing list contained over 4,000 names, of which 1,500 to 2,000 were active accounts. When the witness had conversations with the various buyers, articles such as exhibits 1-a, 1-b, and 1-c were generally referred to as "18-inch squares," "silk squares," and "small squares." These articles are invoiced by his company as silk squares, and orders request the articles in the same manner or by style number. Merchandise such as and similar to exhibits 1-a, 1-b, and 1-c is ordered by the neckwear department, is delivered to the neckwear department, and bills and invoices therefor are sent to the neckwear department. The Specialty House, Inc., sold approximately thirty-five thousand dozen articles like exhibits 1-a, 1-b, and 1-c annually. None of these articles had ever been sold to the handkerchief department nor had they been invoiced as handkerchiefs. It is the trade custom to allow an 8 per centum discount on scarves, and this discount was allowed on articles like exhibits 1-a, 1-b, and 1-c. Exhibits 1-a, 1-b, and 1-c are not suitable for use as handkerchiefs because they are too light in weight and too porous, and would not hold anything if used as handkerchiefs. Miss Jean Alexander, one of the models in the photographic exhibits, heretofore alluded to, was called as a witness for the plaintiffs. She testified that she is an actress and does modeling; that she has appeared on the radio, television, in the movies, and on the stage; that as an actress she considered it a part of her business to study modes and fashions; that she has used articles like exhibits 1-a, 1-b, and 1-c in the maimer shown by the photographs; that she had never seen exhibits 1-a, 1-b, and 1-c used as a handkerchief; that she had never used either of these exhibits to wipe her nose, face, or eyes. On cross-examination, the witness disagreed with the definition of a handkerchief, as given in Webster's New Collegiate Dictionary, and with the definition of a handkerchief, as given in the Bush case, supra. The witness admitted, however, that she would use exhibit 1-c as a neckerchief. Counsel for the plaintiffs called as their next witness Julius Ruder-man, president of Marvin Accessories, Inc., who had been engaged in the importation, manufacture, and sale of women's scarves since 1922, handling articles like exhibits 1-a, 1-b, and 1-c of 4- and 5-momme habutae silk. The witness testified that he sold such merchandise all over the United States to jobbers and wholesalers and described the article on the invoices as 18-inch scarves; that such designation has been used since 1948 to describe articles like exhibits 1-a, 1-b, and 1-c; that articles similar to exhibits 1-a, 1-b, and 1-c have been imported by him since 1922 and sold by him in the trade as scarves; that, from 1922 to the present day, articles like exhibits 1-a, 1-b, and 1-c have been used as wearing apparel around the neck as a scarf; that, since 1922, articles like exhibits 1-a, 1-b, and 1-c have been sold in the trade as scarves and that trade designation has been definite, uniform, and general throughout the United States; and that the uses made of exhibits 1-a, 1-b, and 1-c, as shown by illustrative exhibits 4, 5, 7, 8, 10, 11, 12, 13, and 17, are uses made of scarves like exhibits 1-a, 1-b, and 1-c. Plaintiffs called as their next witness Sado Goldenberg, who has been engaged in the scarf and ladies' neckwear business since 1911. This witness testified that among other things he had sold articles like exhibits 1-a, 1-b, and 1-c to department stores throughout 14 or 15 Far Western States; that articles like exhibits 1-a, 1-b, and 1-c are referred to in the trade as scarves; that in purchase orders they are called scarves; that the customary discount in making a sale of scarves is 8 per centum, provided the bill is paid within 10 days after the end of the month; that articles like exhibits 1-a, 1-b, and 1-c are never sold in the handkerchief department but always in the scarf department, and the 8-per centum discount is always allowed. The witness, when interrogated by the court, answered as follows: Judge Lawbence: Let me put it this way. When you first began — when did you first begin to deal in silk scarves? The Witness: They have been good as far as I can remember. Judge Lawbence: That is prior to 1920? The Witness: Yes. Judge Lawbence: And have you been familiar with their uses up to date? The Witness: Yes. Judge Lawbence: Have their uses been the same over that period? The Witness: They have. Plaintiffs called as their next witness Frank A. Fuller, who stated that he had been associated with Alfred Kohlberg, Inc., for 29 years and at the present is a salesman and junior vice president; that his firm imports and sells handkerchiefs and scarves; that he had been engaged in the sale of handkerchiefs since 1902, and had sold handkerchiefs for the Kohlberg firm since 1923; that his firm did not handle scarves like exhibits 1-a, 1-b, and 1-c until about the end of 1951; that in the sale of scarves and handkerchiefs he had come in contact with buyers from all over the country; that, prior to 1923, he traveled for 25 years all over the country selling handkerchiefs; that he had sold handkerchiefs throughout the United States for approximately the same length of time with only a few periods of interruption; that his sales since 1924 had been continuous, and, based upon his contacts with purchasers and his experience in the trade in making such sales during all of that time, he stated that the term "handkerchief" had a definite and uniform meaning throughout the trade in the United States. Counsel read to the witness the definition quoted in the Bush case, supra, as follows: Handkerchief. 1. A small piece of cloth usually square and often embroidered or laced, carried for wiping the face, nose, or eyes. 2. A piece of cloth shaped like a handkerchief worn about the neck; a neckerchief; a neckcloth. The witness then stated that the trade understanding of "handkerchief" agrees with the first part of said definition but not with the second part of the definition. In the trade, a handkerchief is for the nose, eyes, and face. A piece of cloth shaped like a handkerchief worn around the neck is not such an article as the trade would refer to as a handkerchief. A neckerchief or neckcloth is not within the trade understanding of a handkerchief. Q. Mr. Fuller, can you give us some approximate idea of the number of dozens of handkerchiefs that you have sold in the year 1930 or the value of those handkerchiefs? — A. Well, I think it would be around 300,000 dozens. Q. Were those sales that you made personally? — A. No, the firm. Q. And did you participate in those sales? — A. In those days I was selling about $400,000 worth of handkerchiefs. Q. In the years 1929 and 1930, were your sales around that magnitude?- — A. I think so, around that time. Q. Now, is the trade definition that you gave of the term handkerchief — was that definition in the trade from 1924 to the present time?- — A. In my experience, yes. í¡< ‡ # ❖ Q. I ask you specifically from 1924 to the present time, whether articles like Exhibit la, lb, and lc have been sold by you as handkerchiefs? — -A. Never. Q. Have you ever seen them offered for sale by any other salesman as handkerchiefs? — A. Never. The witness testified further that his sales of handkerchiefs since 1924 had always been to the handkerchief department, and never to the scarf department; that the customary discount for handkerchiefs is 3 per centum, which was uniformly given and was given by him in the sale of handkerchiefs; that the customary discount on scarves is 8 per centum, that scarves like exhibits 1-a, 1-b, and 1-c were never sold witb a 3 per centum discount, nor were handkerchiefs sold with an 8 per centum discount; that the No. 1 definition of a handkerchief, used in the Bush case, supra, has been definite, uniform, and general in the trade of the United States since 1924, and it is the definition uniformly accepted today. On cross-examination, the witness testified that Alfred Kohlberg, Inc., has never handled silk handkerchiefs; that he has never bought or sold a silk handkerchief in the trade and commerce of the United States since 1924; that, when he speaks of handkerchiefs, he means cotton and linen handkerchiefs; that his definition of a silk handkerchief is the same as his definition of a linen handkerchief used for the purpose of wiping the eyes, nose, or face. Plaintiffs' next witness was Milton Beards, who was one of the owners of Baar & Beards, Inc., a firm engaged in the business of importing and manufacturing ladies' scarves and neckwear. This witness testified that in the course of his business, since 1928, he came in contact with the buyers, saw all of the orders placed with the firm, formulated the price lists, and supervised the advertising literature of the firm; that the trade name of articles like exhibits 1-a, 1-b, and 1-c, based upon his experience, was 18-inch squares or small squares; that his firm sold a minimum of 200,000 dozen articles like exhibits 1-a, 1-b, and 1-c annually for the past 6 years. The witness testified further that, in selling scarves or squares, the normal discount is 8 per centum; that articles like exhibits 1-a, 1-b, and 1-c are always sold as scarves or squares and with a discount of 8 per centum; that the term "scarves" or "squares" is used interchangeably and that buyers ordering squares realize that they are getting scarves; that the term "square" has recently become more popular because a few years ago scarves were rectangular in shape; that when this square article became popular, purchasers ordered silk squares in order to distinguish them from scarves. Herbert Robinson testified next for the plaintiffs, stating that he had been engaged in the business of selling and manufacturing handkerchiefs for about 30 years, with the firm of Robinson & Golluber of New York City; that his firm had imported articles like exhibits 1-a, 1-b, and 1-c for about 5 years; that he had been manufacturing and selling handkerchiefs for 30 to 35 years, men's, women's, and children's, and had traveled throughout the United States in making such sales, although he had not traveled within the past 25 years; that he was traveling throughout the United States long prior to 1930, selling handkerchiefs to retail stores, specialty stores, and department stores; that he came in contact with the buyers in the course of his travels, and, at the firm's showrooms in New York, he continued to greet every customer, thus coming in contact with buyers from every section of the United States. The witness testified further that the No. 1 definition quoted in the Bush case, supra, reflected the trade understanding of the term "handkerchief," which was definite, uniform, and general throughout the United States; that he had sold quite a lot of articles like exhibits 1-a, 1-b, and 1-c; that he had never offered them for sale as handkerchiefs but always as scarves; that the customary discount allowed in the sale of scarves was 8 per centum, while the customary discount allowed in the sale of handkerchiefs was only 3 per centum. It was suggested by one of the judges that years ago on the farm he wore a handkerchief around his neck, but the witness stated that that was a bandanna; that ladies do not wear bandannas, but do wear articles like exhibits 1-a, 1-b, and 1-c around the neck, around their hair, and also as an armband; that, when they are worn around the neck, they are worn for ornamental purposes and that they could not be used for wiping the nose. Edward Ezrol, also with the firm of Robinson & Golluber for 29 years, was the next witness to testify for the plaintiffs. He testified that he was manager of the scarf department and had held this position since 1929 or 1930; that he had been selling scarves during all of the aforesaid period, and had carried the plain colors, ombre shades, and prints like exhibits 1-a, 1-b, and 1-c since 1948 or 1949; that he had sold such merchandise to retail stores throughout the United States and had come in contact with purchasers in making such sales; that its scarves had been sold in every section of the United States, and that its annual sales volume had exceeded one million dollars for several years; that, in making such sales, articles like exhibits 1-a, 1-b, and 1-c were described to the customers as 18-inch scarves or squares and are never sold as handkerchiefs; and that articles like exhibits 1-a, 1-b, and 1-c receive the customary 8 per centum discount given on scarves, and only 3 per centum on handkerchiefs. The witness testified that he had also sold handkerchiefs throughout the United States during the years 1928 to 1931, the annual volume of such sales being about $75,000; that during the aforesaid time there was a definite understanding in the trade of the term "handkerchiefs"; that such understanding was essentially the No. 1 definition of a handkerchief quoted in the Bush case, supra; that the No. 2 definition was not within the trade understanding of what he was selling as a handkerchief; that handkerchiefs, as such, were not worn around the neck or in any other place for warmth; and that the trade understanding of the term "handkerchief," which he described as coinciding with the No. 1 definition, sufra, and which was acceptable in 1928 to 1931, is the same definition that is generally accepted throughout the trade today. The defendant's first witness was John H. Kimball, who testified that he was in charge of the firm of J. H. Kimball, Inc., and that said firm was engaged in tbe business of manufacturing scarves and handkerchiefs; that his association with the firm began in 1932 and for 6 years prior to that he was in a similar business, but mostly importing; that he sold scarves, handkerchiefs, and table linens; that his firm had manufactured articles like exhibits 1-a, 1-b, and 1-c on and off for 20 years; that he "guessed" he had sold articles like exhibits 1-a, 1-b, and 1-c, which he identified as handkerchiefs, neckerchiefs, kerchiefs, or silk squares. "They are known by all of these various names." The witness also testified that he had sold at wholesale throughout the 48 States articles like exhibits 1-a, 1-b, and 1-c, and that such articles had been sold as handkerchiefs; that the term "handkerchief," as quoted in the Bush case, supra, conforms to his understanding of the term; that the average woman would not buy exhibit 1-a to wipe her nose, but would rather use it to tuck in her wrist or belt, to wear as a costume "picker-upper"; that, for the 26 years he had been in business, the use of these articles varied from time to time; that during the time he had been in business the general understanding of the term "scarf" was an oblong piece of fabric of various dimensions or a square fabric 24 inches or over; that he had sold articles like exhibits 1-a, 1-b, and 1-c both as handkerchiefs and as scarves, but, prior to June 17, 1930, they were sold a great deal more as handkerchiefs. The court called the attention of the witness to the fact that he had been referring to the involved merchandise as squares, whereupon he explained that he usually referred to these silk decorative items as squares, while cotton and linen articles of the same character were more likely to be called handkerchiefs. The witness also testified that most department stores draw a line between what their handkerchief department and their scarf department will carry at 24 inches, but later stated he "would not say" that the department stores do not buy as a scarf anything that is less than 24 inches square. He also testified that he was aware of the fact that scarf dealers in the United States, such as Baar & Beards, Inc., and The Specialty House, Inc., which he did not regard as handkerchief houses, do sell articles such as exhibits 1-a, 1-b, and 1-c. Collective exhibit B was admitted in evidence as representing merchandise manufactured by the witness, which he testified was similar to exhibits 1-a, 1-b, and 1-c. The witness testified further that articles of cotton or linen, from 9 to 13 inches, would be entitled only to a 3 per centum discount, and that articles such as collective exhibit B are sold to scarf departments. Defendant's second witness, Robert L. Demarest, testified that he was president of Robert L. Demarest, Inc., and that he had been engaged in the handkerchief business since 1938, and that he had been associated with Benjamin Wolf & Co. from 1923 to 1938; that with the latter firm he sold Japanese silk handkerchiefs, but his own firm handles only cotton and linen handkerchiefs; that when he was with Benjamin Wolf he sold articles like exhibits 1-a, 1-b, and 1-c as handkerchiefs throughout the territory of Philadelphia and Washington; that articles like exhibits 1-a, 1-b, and 1-c were in existence prior to 1930 and were not known by any other name than handkerchiefs; that they were generally and uniformly sold throughout the United States by Benjamin Wolf as handkerchiefs. On cross-examination, the witness testified that he carried a full line of cotton and linen, printed and embroidered, handkerchiefs, but no silk handkerchiefs; that he knew nothing about merchandise like exhibits 1-a, 1-b, and 1-c, and insisted that he had no competency to answer anything about this type of merchandise at the present time; that he never comes in competition with such articles in the sale of his handkerchiefs. The defendant's next witness, Harry Gintel, was associated with New York Creations, Inc., jobber and distributor of belts, jewelry, and wallets to the haberdashery trade, as well as handkerchiefs. He testified that his firm manufactures cotton and linen handkerchiefs; that he sells these handkerchiefs throughout the eastern and middle western parts of the United States, and also handles sales in the New York office, to which buyers come from all over the country; that, from 1914 until 1928, he was associated with J. R. Simon & Co.; that it was an importer of silk piece goods and silk handkerchiefs; that he had sold articles like exhibits 1-a, 1-b, and 1-c from 1914 to 1928 throughout the United States and that such articles had been sold as handkerchiefs; that men used such articles as pocket handkerchiefs; that, from 1928 to 1950, he had been associated with the firm of Schlesinger & Gintel, engaged in importing silk handkerchiefs from Japan and handling domestic handkerchiefs; that the domestic handkerchiefs were silk and rayon; that articles such as exhibits 1-a, 1-b, and 1-c were sold at wholesale to the trade and commerce of the United States as handkerchiefs. With reference to the size of articles which he had seen used as handkerchiefs from 1914 to the present time, the witness was questioned and answered as follows: Q. Did you observe other sizes? — A. Yes, sir. Q. What' size would they be? — A. 72 inches. Q. Nothing smaller than that? — -A. No, sir. When read the definition of a handkerchief quoted in the Bush case, supra, the witness stated that he agreed with the definition, except it was not quite broad enough, because they had sold the bulk of these.silk handkerchiefs for decorative purposes, not to wipe the nose. The witness also testified that, for the 39 years he had been in business, articles like exhibits 1-a, 1-b, and 1-c he had always under stood to be handkerchiefs, and that term was definite, uniform, and general in the trade and commerce of the United States. Cross-examination of this witness developed that in 1926 through 1928 his experience was limited to sales in some of the southern states, as far west as Indianapolis, and in New York City; that exhibits 1-a, 1-b, and 1-c are not known as scarves; that they were never ordered as silk squares in those sizes, but, in the 36-inch size, they were ordered as silk squares; that the 22-inch size was imported as neckerchiefs; and that the 22-inch size, even though worn about the head, was considered as a neckerchief. Harry H. Weider testified next for the defendant that he was the owner of the Cadillac Handkerchief Co. since 1945; that the handkerchiefs manufactured by his firm are cotton and rayon and that he imported some silk handkerchiefs; that he sells these handkerchiefs in the wholesale trade and commerce and that his territory takes in practically the entire United States; that he personally makes sales in New York and that he has representatives on the Pacific Coast who sell for him; that, from 1920 to 1941, he was connected with A. S. Rosenthal Co., importer of silk handkerchiefs and silk piece goods; that, in 1920, he was a salesman for that firm and later became sales manager; that he personally traveled, selling from New York to Denver, Colo.; from New York to Massachusetts; from New York to Florida; that as sales manager he covered the balance of the country from the Atlantic to the Pacific Oceans. The witness testified further that the articles he sold as handkerchiefs, like exhibits 1-a, 1-b, and 1-c, were made of crepe de chine, palace crepe, and various other materials, but that he has not sold articles like exhibits 1-a, 1-b, and 1-c as handkerchiefs since 1945. At first, the witness stated that articles that are designed to be worn by men around the neck were sold by him as handkerchiefs, but he then stated that he could not say whether such articles were included in the trade understanding of handkerchiefs today, because he was not in that business; that he did not know what the trade understanding of handkerchiefs included for 1952. The witness finally stated that everything up to 27 inches would be considered a handkerchief, and everything over 27 inches square, composed of silk or cotton, would be considered a scarf. It was then stipulated between respective counsel that if Mr. David Greenfeld were called as a witness on behalf of defendant his qualifications and his testimony, both on direct and cross-examination, would be similar in all material respects to the testimony given by and the qualifications of Mr. Weider. William J. Norris was called by the defendant and testified that his experience with the use of articles such as exhibits 1-a, 1-b, and 1-c was from August 1950 and tbat be bad no knowledge of tbeir use prior to tbat time. William A. Swan was called by tbe plaintiffs in rebuttal, wbo testified tbat be is associated witb tbe firm of Sankyo Seiko Co. of Yokohama, Japan, importing scarves; tbat, from 1923 to 1938, be was importing squares, scarves, kimonas, and coolie coats from Japan; tbat he sold tbe men's silk handkerchiefs which be imported throughout tbe entire United States in quantities estimated at one-half million dollars annually; tbat exhibit 1-a was never sold as a man's silk handkerchief; that exhibit 31 was typical of articles sold as silk handkerchiefs, being designed for men; that exhibit 32 is a typical man's handkerchief made of heavy crepe with a woven stripe pattern; that exhibit 32 is a 12-momme crepe and is entirely different from the 4-momme habutae article like exhibit 1-b; that exhibits 1 — a, 1-b, and 1-c were never sold as men's handkerchiefs; that he was familiar with the merchandise handled by Benjamin Wolf; and that said firm handled articles such as exhibits 1-a, 1-b, and 1-c as well as exhibit 31. Plaintiff's next rebuttal witness was Miss Marie D. Ardito, who testified that she was associated with the firm of W. T. Grant Co. as a buyer; that said firm has a chain of 500 retail stores located in practically every section of the United States; that she has been engaged in buying handkerchiefs and neckwear for said firm since 1943; that, prior thereto, she was engaged from 1938 until 1943 as a handkerchief buyer for Hahne & Co. of Newark, N. J.; that she purchased merchandise like exhibits 1-a, 1-b, and 1-c as scarves; and that they were so classified by W. T. Grant Co. On cross-examination, the witness testified that she visits various stores in and out of New York to check on the departments and see whether the merchandise is handled properly, sold according to the classification, and priced accordingly; that exhibits 1-a, 1-b, and 1-c were always bought as scarves and classified as scarves by her company, and never as handkerchiefs. Counsel for the respective parties then stipulated that if Mr. Mario K. Pellacani were called as a witness he would testify that he was an executive of F. W. Woolworth Co., operating a chain of 2,000 retail department stores of the type commonly known as the 5-and-10-cent stores throughout the United States; and that articles such as exhibits 1-a, 1-b, and 1-c have been classified by said company throughout all its stores since 1945 as scarves. A stipulation to the same effeet covered the testimony of Joseph F. Mitchell, district manager of S. S. Kresge Co., operating a chain of 360 retail stores throughout the United States. Counsel for the defendant appears to rely upon our decision in Geo. S. Bush & Co., Inc. v. United States, 29 Cust. Ct. 365, Abstract 56928, as supporting its contention herein. In that case, only one witness testified, and her testimony was set out in our opinion as follows: At the trial, one witness testified for. the plaintiff that she has been employed for the past 10 years by Best's Apparel, which operates a specialty shop; that she was familiar with the merchandise in question and that it comes in 42 different colors; that the staple colors are obtained from a local scarf house, but that all these fantastic colors are made only in France; that they are used to accentuate colors in women's costumes, being sold mostly in pairs; that as a rule young girls will buy one to pick up a color on her skirt or sweater and will tie them around their neck with a small knot, but most of them are sold in pairs; that they pick up the color of the outfit and they also pick up a color that compliments the woman's complexion or wardrobe; that they are a fill-in for a suit, and they are tied in a knot at each corner, leaving very little bulk at the back of the neck where a scarf usually feels bulky. The witness testified further that Strauss & Muller is strictly a scarf house that does not sell handkerchiefs; that Best's Apparel does not sell articles like illustrative exhibit 1 in the same department in which they sell hand kerchiefs; that she buys handkerchiefs as well as scarfs; that there is a great deal of difference between a handkerchief and a scarf; that a handkerchief is something you use for your nose; that lacy and elaborate evening handkerchiefs are carried tucked under a bracelet or belt or hanging from a pocketbook and are not large enough to be wrapped around the neck like illustrative exhibit 1; that Best's Apparel would never buy handkerchiefs in all of the colors of the imported articles now in question, and that she had never seen articles like illustrative exhibit 1 being used in the manner that handkerchiefs are commonly used; that this merchandise was ordered as 18-inch squares, and that if they received what they wanted, their being called "handkerchiefs" on the confirmation or invoice would not have led to a rejection of the merchandise. There was also quoted in the decision in the Bush case, supra, the following definition of the term "handkerchief," as found in Webster's New International Dictionary, 1949: Handkerchief. 1. A small piece of cloth usually square and often embroidered or laced, carried for wiping the face, nose, or eyes. 2. A piece of cloth shaped like a handkerchief worn about the neck; a neckerchief; a neckcloth. The decision in the Bush case, supra, was concluded as follows: In the instant case it must be presumed that the collector found every fact to exist that was necessary to sustain his classification. Therefore, the presumption is that the merchandise in question consists of small pieces of cloth, approximately 18 inches square, carried for wiping the face, nose, or eyes, or that it consists of a piece of cloth shaped like a handkerchief worn about the neck. Plaintiff had the burden of overcoming this presumption by competent evidence. This it has failed to do. It is obvious from the conclusion reached in the Bush case, supra, that the court, based upon the record therein, did nothing more than find that the presumption of correctness attaching to the classification of the collector had not been overcome by the testimony of the one witness. Having found this as a fact, any further expression of opinion therein would have been obiter. It is, therefore, clear that the defendant herein can find no aid or comfort in the Bush case, supra, in support of its contention in the present case. A consideration of the testimony in the Bush case, supra, as above set out, and the testimony in the present case, as hereinbefore detailed, renders obvious the difference in quality, quantity, and character of the testimony in the two cases, and requires no further comment here. It is fundamental that commercial designation is a fact which must be proved in each case, like any other fact, by the weight of the competent evidence. Seeberger v. Schlesinger, 152 U. S. 581. The weight of the evidence establishes that on and immediately prior to June 17, 1930, there was, as to the No. 2 definition quoted in the Bush case, supra, a difference between the common and commercial meaning of the term "handkerchief"; that such commercial meaning of the term "handkerchief" was definite, uniform, and general throughout the trade and commerce of the United States; that such commercial meaning covered and included a small piece of cloth, usually square, carried by a person for wiping the face, nose, and eyes, but did not cover and include a piece of cloth shaped like a handkerchief worn about the neck, a neckerchief, or neckcloth, whether such cloth was composed of cotton, linen, silk, or other material. The weight of the evidence also establishes that the involved merchandise is used by women and girls in their hair, combined with pearls and other jewelry and worn around the neck, as color accents on different articles of wearing apparel, as a fichu around the collar of a suit and in lieu of a blouse, as a color accent at the waistline or the anide or on a pair of slippers, and that such uses are the chief uses of the involved merchandise. Whether the involved merchandise is worn around the neck or otherwise, it is always worn by women and girls as an ornament, as a style accessory, and as a picker-up for other articles of wearing apparel. It is never carried or used for wiping the face, nose, or eyes. The evidence further establishes that the involved merchandise is known and dealt in commercially as scarves or squares, and never as handkerchiefs; that there is a trade discount of 8 per centum on scarves and squares and a trade discount of 3 per centum on handkerchiefs; and that the involved merchandise is uniformly granted the 8 per centum discount applicable to scarves and squares. When it is considered that W. T. Grant Co. has 500 retail stores, F. W. Woolworth Co. has 2,000 retail stores, and S. S. Kresge Co. has 360 retail stores throughout the United States, in addition to perhaps thousands of other stores throughout the United States, all of which are accorded the 8 per centum discount in purchasing the involved merchandise, much weight attaches to the fact that the involved mer- ch.an.dise is accorded the 8 per centum discount, rather than the 3 per centum discount accorded in the sale of handkerchiefs. No argument is required to establish that if in the trade throughout the United States the involved merchandise were known, and bought, and sold, and used, as handkerchiefs, it would be accorded only the 3 per centum discount and not the 8 per centum discount applicable to scarves or squares. In the case of Two Hundred Chests of Tea, 22 U. S. 428, 6 L. ed. 128, in dealing with the question of commercial designation, the Supreme Court of the United States said: The argument on behalf of the United States, is, that the 'two hundred chests of tea, now in controversy, are in reality simple congo tea, and not bohea; that the latter is a pure unmixed tea, entirely distinct from congo, and known in China by an appropriate name; that it is to this pure and unmixed bohea tea, that the successive act of Congress refer, and not to any other mixed tea, though known by the common denomination of bohea. If we were to advert to scientific classifications for our guide on the present occasion, it is most manifest, from the works cited at the bar, that bohea is a generic term, including under it all the black teas, and not merely a term indicating a specific kind. But it appears to us unnecessary to enter upon this inquiry, because,' in our opinion, Congress must be understood to use the word in its known commercial sense. The object of the duty laws is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. Whether a particular article were designated by one name or another, in the country of its origin, or whether it were a simple or mixed substance, was of no importance in the view of the legislature. It did not suppose our merchants to be naturalists, or geologists, or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic. And it would have been as dangerous as useless, to attempt any other classification than that derived from the actual business of human life. Bohea tea, then, in the sense of all our revenue laws, means that article which, in the known usage of trade, has acquired that distinctive appellation. The true inquiry, therefore, is, whether, in a commercial sense, the tea in question is known- and bought, and sold, and used, under the denomination of bohea tea. The evidence in this case establishes that the involved merchandise is, in a commercial sense, known, and bought, and sold, and used, as squares or scarves, and that it is not known, and bought, and sold, and used, as handkerchiefs. When the principles announced in the Two Hundred Chests of Tea, supra, are applied to the facts in this case, they require a holding that the involved articles are not handkerchiefs, but scarves or squares. In Curtis v. Martin, 44 U. S. 106, 11 L. ed. 516, Mr. Chief Justice Taney, speaking for the Supreme Court of the United States, said: The question brought up by this exception cannot now be considered as an open one. In the case of The United States v. 200 Chests of Tea (9 Wheat., 438), ¡the cpurt decided that in imposing duties Congress must be understood as describ ing the article upon which the duty is imposed according to the commercial understanding of the terms used in the law, in our own markets. This doctrine was re-affirmed in the case of The United States v. 112 Casks of Sugar (8 Peters, 277), and again in 10 Peters, 151, in the case of Elliott v. Swartwout. It follows that the duty upon cotton bagging must be considered as imposed upon those articles only which were known and understood as such in commerce in the year 1832, when the law was passed imposing the duty. In the ease before us, the Circuit Court followed the rule of construction above stated, and it has been followed also in every circuit where the question has arisen. The involved merchandise was not known and understood as handkerchiefs in commerce in 1930, when the law was passed imposing duty upon handkerchiefs. Under the Curtis case, supra, duty upon handkerchiefs must be considered as imposed upon those articles only which were known and understood as handkerchiefs in 1930. It, therefore, logically follows that the involved merchandise cannot be classified as handkerchiefs for that reason. Nor is that all. The weight of the evidence establishes that the involved merchandise has never, to the present day, been known, and bought, and sold, and used, as handkerchiefs. There is, therefore, nothing which would require or justify the classification of the involved merchandise as handkerchiefs. Of course, if the involved merchandise were not in existence at the date of the passage of the present tariff act, but had come into existence since that date, and if, on the date of importation, it were known, and bought, and sold, and used, as handkerchiefs, its classification as handkerchiefs would be required under the principle that tariff laws are made for the future as well as for the present. Wilhelm Pickhardt v. Edwin A. Merritt, 132 U. S. 252, 33 L. ed. 353, and Newman v. Arthur, 109 U. S. 132, 27 L. ed. 883. That, however, is not the situation in this case. Since the involved merchandise cannot find classification as handkerchiefs under paragraph 1209 of the Tariff Act of 1930, there remains for determination its proper classification. The merchandise was classified as being wholly or in chief value of silk. This classification is presumptively correct, and, there being no evidence to the contrary, we accept as correct that part of the collector's action in classifying the merchandise as being wholly or in chief value of silk. As heretofore stated, the involved merchandise is used by women and girls as articles of wearing apparel. Defendant's witnesses do not contradict this fact. Even if the involved merchandise were used as a handkerchief, it would still be an article of wearing apparel, eo nomine provided for as handkerchiefs. The fact that it is not eo nomine provided for does not destroy its proper classification as articles of wearing apparel, but simply relegates it to that class of articles of wearing apparel, not specially provided for. Upon a full consideration of tbe record and the briefs of counsel filed herein, for the reasons heretofore stated, we hold the merchandise covered by the two suits fisted in said schedule "A," which was classified as "hemmed silk handkerchiefs, valued at not more than $5.00 per dozen," and assessed with duty at 60 per centum ad valorem under paragraph 1209 of the Tariff Act of 1930, to be properly dutiable at 35 per centum ad valorem under paragraph 1210 of the Tariff Act of 1930, as modified, supra, as alleged by the plaintiffs. To the extent indicated, the specified claim in these suits is sustained; in all other respects and as to all other merchandise, all the claims are overruled. Judgment will be rendered accordingly.

415 U.S. 924

C. A. 8th Cir. Certiorari denied.

489 U.S. 1083

C. A. 5th Cir. Certiorari denied.

506 U.S. 922

C. A. 6th Cir. Certiorari denied.

187 U.S. 640

Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.

531 U.S. 833

C. A. 6th Cir. Certiorari denied.

40 Cust. Ct. 516

Opinion by Johnson, J. In accordance with rule 6 (b) of the rules of this court, as amended, the protest was dismissed for lack of prosecution.

530 F.3d 684

RILEY, Circuit Judge. A jury convicted Rick D. Cantrell (Cantrell) of possessing methamphetamine with intent to distribute, conspiracy to manufacture methamphetamine, and possession of a firearm by a convicted felon and unlawful user of a controlled substance. The district court imposed a sentence of 262 months imprisonment. Cantrell appeals his conviction and sentence, arguing the district court erred by (1) denying his two pretrial motions to suppress evidence; (2) refusing to submit Cantrell's requested "mere presence" jury instruction; and (3) determining Cantrell was a career offender under United States Sentencing Guidelines (U.S.S.G.) § 4B1.1, because his 1988 Missouri state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. We affirm. I. BACKGROUND On October 8, 2004, several police officers drove to the Douglas County, Missouri home of Debra James (James) to serve arrest warrants on James and Cantrell. James had an outstanding federal warrant for her arrest, and Cantrell had an outstanding state warrant for his arrest. Officers had information from a confidential informant, who had provided reliable information in the past, that Cantrell was living at the James residence and was currently at the James residence. To access James's rural residence, officers had to cross a tract of land owned by James's father, Charles James. Approximately two years earlier, Charles James had given officers consent to enter onto his land to get to the James house if officers believed something illegal was going on. Charles James's consent was not limited to a specific time period, nor was the permission ever withdrawn. As officers drove down the long driveway leading to the James residence, they observed James in a white Oldsmobile that had been reported stolen. Officers had received information associating both James and Cantrell with the stolen vehicle. The officers asked James to step out of the vehicle, advising James she was under arrest on an outstanding federal warrant. Deputy Ron Wallace (Deputy Wallace) advised James he also had an outstanding warrant for Cantrell's arrest. Deputy Wallace asked James if Cantrell was inside her home, and James informed the deputy that Cantrell was. Because Deputy Wallace had heard through various informants that Cantrell might be violent, he asked James if there were any weapons in her home. James advised there were weapons in her home. Deputy Wallace requested and received James's permission to enter the James residence to place Cantrell in custody. When Deputy Wallace and another officer knocked on the door, Cantrell answered. The officers advised Cantrell he was under arrest and took Cantrell into custody without incident. After arresting Cantrell, officers did a protective sweep of the James residence for their safety to make sure nobody else was in the house. Cantrell told the officers there was a marijuana cigarette in a Marlboro pack on the kitchen table. During the protective sweep, officers observed the marijuana cigarette, as well as a brown glass vial containing a substance that was later determined to be methamphetamine. During a search of the Oldsmobile, incident to James's arrest, officers found pseudoephedrine pills, cut-off straws, two scales, several Ziploc-type baggies, glass smoking devices with what appeared to be methamphetamine residue, a small bag of marijuana, methamphetamine in both powder and liquid form, a razor blade, and several canisters inside a vinyl bag located on the vehicle's front seat. Officers then asked James for consent to search her home, informing James they had found drugs and drug paraphernalia in the car and in her home. James consented to a search of her home. Deputy Wallace never asked Cantrell for permission to search. According to Deputy Wallace, Cantrell never objected to the search. Before the search, Cantrell even asked Deputy Wallace to retrieve his wallet from inside the residence, telling Deputy Wallace the wallet was either on the kitchen counter or in the bedroom in Cantrell's bag of clothes. On the other hand, James testified Cantrell did object to the search, "yelling a lot of obscenities" and "saying you get a search warrant." Cantrell also said, "Everything in that house is mine." In the kitchen area, officers found a gallon container of denatured alcohol, a gallon container of mineral spirits, and a gallon container of paint thinner. They found a syringe on the dining room table. In a bedroom that contained both men's and women's clothing, officers found a green nylon duffel bag partially protruding from underneath the bed, and a brown rifle case. The green duffel bag contained men's clothing and Cantrell's identification, as well as unused syringes, numerous plastic sealable bags, and several smaller bags. One of the smaller bags contained marijuana, and another contained a syringe filled with a brown liquid, a set of digital scales, and a flashlight. The green duffel bag also contained a salt-like crystal substance; several packs of pseudoephedrine pills; plastic tubing; razor blades; folded tinfoil; two lithium batteries that had been separated from their casing; and a plastic bottle of Vitablend, which is used for diluting methamphetamine. The brown case contained a Marlin .22 caliber rifle and a double-barreled shotgun. In a dresser drawer in the same bedroom, officers found two Hi-Standard .22 caliber pistols and an Iver Johnson .22 caliber Magnum pistol with ammunition. A jewelry box on the dresser contained a plastic bag with a white powder substance that tested positive for methamphetamine. Officers also found an electronic listening device underneath a partially opened window. At the time of the search, Cantrell told officers everything in the house was his. Cantrell later signed a sworn affidavit in which he took responsibility for all the drugs and drug paraphernalia found in the James home and in the Oldsmobile James was driving when she was arrested. In the affidavit, Cantrell claimed he put the drugs and drug paraphernalia on the James property and in the vehicle without James's permission. Cantrell stipulated at trial that all five firearms had traveled across state lines in interstate commerce, and that on October 8, 2004, he had been convicted of a crime under the laws of the State of Missouri for which the maximum possible term of imprisonment was greater than one year. On November 17, 2004, Cantrell was charged in a four-count superseding indictment with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Count I); conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(C) and 846 (Count II); possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c) (Count III); and possession of a firearm by a convicted felon and unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(1) and (3) and § 924(a)(2) (Count IV). James filed a motion to suppress, which Cantrell joined. After a hearing on the motion, the magistrate recommended James's motion be denied. After the district court adopted the magistrate's report and recommendation and denied James's motion to dismiss, the magistrate issued a second report and recommendation, recommending the motion also be denied with respect to Cantrell. Cantrell then filed a supplemental motion to suppress, arguing James's consent to search her home was invalid because Cantrell had objected to the search. The magistrate recommended Cantrell's supplemental motion be denied as well, and the district court adopted both of the magistrate's reports and recommendations with respect to Cantrell. On April 10, 2007, a jury found Cantrell guilty of the offenses charged in Counts I, II, and IV of the superseding indictment, and not guilty of the offense charged in Count III. At sentencing, the district court determined Cantrell was a career offender under U.S.S.G. § 4B1.1 because Cantrell's 1988 state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. The district court imposed a sentence of 262 months imprisonment under Counts I and II, and a concurrent 120-month sentence under Count TV. II. DISCUSSION A. Motions to Suppress We review the district court's factual findings underlying its denial of a motion to suppress for clear error and its legal conclusions de novo. See United States v. Wright, 512 F.3d 466, 469 (8th Cir.2008) (citing United States v. Stevens, 439 F.3d 983, 987 (8th Cir.2006)). Cantrell argues the district court erred by refusing to suppress the evidence seized during the search of the James home for two reasons (1) the officers entered the James property without a search warrant and without a reasonable belief Cantrell was at the James residence; and (2) James's consent to search her home was invalid because Cantrell was a lawful co-occupant of the home who presented substantial and credible evidence he objected to the search. We address Cantrell's arguments in turn. 1. Initial Entry onto the James Property to Arrest Cantrell Cantrell contends the evidence seized during the search of the James home should be suppressed because officers entered the James property with a warrant for Cantrell's arrest, but without a search warrant and without a reasonable belief Cantrell resided at or was currently at the James residence. "[P]olice officers do not need a search warrant to enter the home of the subject of an arrest warrant in order to effectuate the arrest." United States v. Powell, 379 F.3d 520, 523 (8th Cir.2004) (quoting United States v. Boyd, 180 F.3d 967, 977 (8th Cir.1999)). "An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id. (citing Steagald v. United States, 451 U.S. 204, 221, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). Officers may enter a third party's home to execute an arrest warrant if the officers "have a reasonable belief that the suspect resides at the [third party's home] and have reason to believe that the suspect is present at the time the warrant is executed." Id. (citations omitted). Otherwise, officers cannot "legally search for the subject of an arrest in the home of a third party" without a search warrant, unless exigent circumstances exist or officers have obtained the third party's consent. Id. (citing Steagald, 451 U.S. at 215-16, 101 S.Ct. 1642). In Cantrell's case, the warrantless entry into the James home to arrest Cantrell did not violate his Fourth Amendment rights because: (1) officers had a reasonable belief Cantrell resided at the James home and Cantrell was inside the James home at the time the warrant was executed; and (2) officers obtained James's express consent to enter her home and arrest Cantrell. Officers learned from a confidential informant, who had provided reliable information in the past, that Cantrell resided at and was currently at the James home. James confirmed the informant's tip, informing officers shortly after her arrest that Cantrell was currently inside her home. This information was more than sufficient to support the officers' reasonable belief Cantrell resided at the James home and was inside the home at the time officers executed the warrant. Even if officers had no reasonable basis for their belief Cantrell was inside the James home when they served the arrest warrant, James's consent provided an independent basis for officers to enter her home to arrest Cantrell. James's consent was unequivocal: Deputy Wallace requested permission to get Cantrell from the James residence to place Cantrell in custody, and James gave her permission. The officers were not required to obtain a search warrant before entering the James home and arresting Cantrell. Upon Cantrell's arrest, a protective sweep like the one officers conducted here is "permissible without a search warrant or probable cause" when the officers' legitimate interest in assuring themselves the house in which the suspect has just been arrested is not harboring anyone who could pose a threat to officer safety "is 'sufficient to outweigh the intrusion such procedures may entail.'" United States v. Cash, 378 F.3d 745, 747 (quoting Maryland v. Buie, 494 U.S. 325, 333-34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). The level of suspicion required for such a protective sweep is "the same level of suspicion required for a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." Cash, 378 F.3d at 748. Such a protective sweep requires " 'articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.'" Id. (quoting Buie, 494 U.S. at 334, 110 S.Ct. 1093). The circumstances of Cantrell's arrest — particularly James's acknowledgment there were weapons in the house- warranted the officers' protective sweep of the James residence. Cantrell completely fails to distinguish between the initial entry into the James home to effectuate his arrest; the protective sweep immediately following his arrest; and the subsequent full-scale search of the James home based on James's consent. When officers arrested Cantrell just inside the James residence front door, officers did not search the James home or seize any evidence. During the protective sweep immediately following Cantrell's arrest, officers apparently observed only two contraband items: a marijuana cigarette in a Marlboro pack on the kitchen table, and a brown vial containing a substance later determined to be methamphetamine. It was the subsequent full-scale search, conducted pursuant to James's express consent, that yielded the five firearms and the extensive evidence of methamphetamine manufacturing and distribution which Cantrell seeks to suppress. Cantrell does not argue the consent search was the "poisonous fruit" of the initial entry or the protective sweep, nor does Cantrell argue the initial entry or the protective sweep otherwise operated to invalidate James's consent. As discussed below, Cantrell merely argues James's consent was invalid because Cantrell was a lawful co-occupant who was present and objected to the search. Thus, even if the initial entry into the James residence or the protective sweep were somehow unlawful, Cantrell provides no basis to suppress the evidence seized in the subsequent consent search. 2. Subsequent Consent Search of the James Home Cantrell argues the search of the James home, conducted with James's express consent, violated his Fourth Amendment rights. Cantrell does not challenge the voluntary nature of James's consent or her authority over the premises. Instead, Cantrell contends James's consent to search was invalid because Cantrell was a lawful co-occupant of the home, and Cantrell presented substantial and credible evidence he objected to the search. To support his argument, Cantrell relies on Georgia v. Randolph, 547 U.S. 103, 120, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), where the Supreme Court held "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." See also United States v. Hudspeth, 518 F.3d 954, 958-61 (8th Cir.2008) (en banc). In Randolph, the co-occupants were spouses with equal rights to the property. In Cantrell's case, the government contends it is unclear whether Randolph applies because "James, as the owner of the house, had a right to exclude or eject Cantrell at any time, since he was merely an occasional overnight guest." Indeed, the record contains conflicting evidence as to the nature of Cantrell's authority over or interest, if any, in the property. We need not decide whether Cantrell was a "physically present resident" or whether the James residence constituted a "shared dwelling" as contemplated by Randolph because, even assuming Cantrell had a right to object to the search, the district court did not clearly err in finding Cantrell did not object to the search. James testified Cantrell objected to the search, "yelling a lot of obscenities" and "saying you get a search warrant." In contrast, Deputy Wallace testified he never asked Cantrell for permission to search, and Cantrell never objected to the search. Deputy Wallace further testified that, at one point, Cantrell even asked Deputy Wallace to retrieve his wallet, which Cantrell left either on the kitchen counter or in the bedroom in a bag of clothes. The district court expressly found Deputy Wallace's testimony was credible and James's testimony that Cantrell "spontaneously and loudly disclaimed a grant of consent" was incredible. The district court also noted Cantrell's supposed vehement objection to the search was inconsistent with Cantrell's request that Deputy Wallace retrieve his wallet from the kitchen or bedroom. "A district court's determination as to the credibility of a witness is virtually unreviewable on appeal." Heath, 58 F.3d at 1275 (citations omitted). We find no basis to conclude the district court erred, much less clearly erred. B. Cantrell's Request for a "Mere Presence" Instruction Cantrell argues the district court erred by refusing to submit his requested "mere presence" jury instruction. We review the rejection of a defendant's proposed "mere presence" jury instruction for an abuse of discretion. See United States v. Jara, 474 F.3d 1018, 1022 (8th Cir.2007), United States v. Serrano-Lopez, 366 F.3d 628, 637 (8th Cir.2004). We will affirm if "the instructions given as a whole . fairly and adequately submitted the issues to the jury." United States v. Meads, 479 F.3d 598, 601 (8th Cir.2007) (quoting United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002)). "A [criminal] defendant is entitled to a theory of [the] defense instruction," such as a "mere presence" instruction, if the instruction "is timely requested, supported by the evidence, and correctly states the law." Id. (citing United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002)). However, "a defendant is not entitled to a particularly worded instruction where the instructions given by the trial judge adequately and correctly cover the substance of the requested instruction." United States v. Manning, 618 F.2d 45, 48 (8th Cir.1980) (citations omitted) (per curiam). A "mere presence" instruction is unnecessary where it "would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof." Serrano-Lopez, 366 F.3d at 637 (citations omitted). Cantrell proposed the following instruction: Mere presence or proximity to a firearm at the scene is not enough to support a finding that defendant knowingly possessed a firearm, unless you find beyond a reasonable doubt that the defendant knew that the firearms were present, and intended to exercise dominion and control over the firearms either directly or through others. The district court rejected Cantrell's proposed instruction. The district court submitted an instruction which required the jury to find beyond a reasonable doubt Cantrell "knowingly possessed" one or more of the five firearms found during the search of the James residence. The district court also submitted an instruction which defined the term "possession" as follows: The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Whenever the word "possession" has been used in these instructions it includes actual as well as constructive possession and also sole as well as joint possession. The parties agree Cantrell's proposed instruction was timely requested and correctly stated the law. The government argues Cantrell's requested instruction was unsupported by the evidence. We agree there was simply no evidence Cantrell was "merely present" when the guns were found. On the contrary, Cantrell's clothes and his identification were in the bedroom. The house contained methamphetamine and numerous items of methamphetamine paraphernalia, all of which Cantrell stipulated belonged to him. Cantrell told police shortly after he was arrested that everything in the house was his. Cantrell argues this statement referred only to the drug-related evidence in plain view, not to the hidden guns. Even assuming Cantrell's statement was not intended to claim ownership of the guns, the fact Cantrell claimed ownership of the numerous items relating to the manufacture and distribution of methamphetamine strongly refutes the notion Cantrell was "merely present" when police found the guns. Cantrell did not present any witnesses or other evidence to support giving his "mere presence" instruction. Thus, the district court did not abuse its discretion by refusing to submit Cantrell's "mere presence" instruction. Even if some basis existed for giving a "mere presence" instruction, the district court did not abuse its discretion by rejecting Cantrell's instruction because the jury was correctly instructed on the burden of proof, the definition of "possession," and the requirement that the government prove beyond a reasonable doubt Cantrell "knowingly" possessed a weapon. These instructions were sufficient to preclude conviction based on Cantrell's "mere presence" at the James home when the police discovered the guns. As in Serrano-Lopez, a "mere presence" instruction was unnecessary in Cantrell's case because it "would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof." Serrano-Lopez, 366 F.3d at 637 (citations omitted).- We therefore conclude the district court's instructions adequately and correctly covered the substance of Cantrell's requested "mere presence" instruction. C. Cantrell's Second-Degree Burglary Conviction Cantrell argues the district court erred in determining Cantrell was subject to an increased range of punishment as a career offender under U.S.S.G. § 4B1.1 because Cantrell's 1988 Missouri state court conviction for second-degree burglary constituted a "crime of violence" as defined in U.S.S.G. § 4B1.2. We review de novo the district court's conclusion a particular offense constitutes a "crime of violence" under the "career offender" provision of § 4B1.1. See United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir.2006) (citation omitted). Under U.S.S.G. § 4B1.2(a), a "crime of violence" is defined, in relevant part, as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . is burglary of a dwelling [or other specified offenses] or otherwise involves conduct that presents a serious potential risk of physical injury to another." The official "Commitment Report" in Cantrell's burglary case states: On or about [the] 14th day of May, 1988, in the County of Wright, State of Missouri, the Defendant violated Section 569.170 RSMo by committing the Class C felony of Burglary second degree punishable upon conviction under Sections 558.011.1(3) and 560.011 RSMo in that the Defendant knowingly entered unlawfully in an inhabitable structure . for the purpose of committing stealing therein. Under Mo.Rev.Stat. § 569.170, "A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Cantrell's "Commitment Report" does not specify what type of "inhabitable structure" Cantrell entered unlawfully. Under Mo.Rev.Stat. § 56.010(2): "Inhabitable structure" includes a ship, trailer, sleeping car, airplane, or other vehicle or structure: (a) Where any person lives or carries on business or other calling; or (b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or (c) Which is used for overnight accommodation of persons. Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present[.] Cantrell argues, based on the limited information in the "Commitment Report" and the broad definition of "inhabitable structure" in the Missouri statute, it was impossible for the district court to determine whether Cantrell burglarized a "dwelling" or whether his offense constituted a "burglary" as defined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Supreme Court grappled with how to define "burglary" within the meaning of the Armed Career Criminal Act (ACCA), when convicting states' definitions of "burglary" varied. Id. at 580, 110 S.Ct. 2143. The Court reasoned the definition of "burglary" should be uniform, so as to avoid sentencing disparities for identical conduct in different states. Id. at 590-92, 110 S.Ct. 2143. Thus, the Court held an offense constitutes "burglary" under the ACCA, regardless of differences in individ ual states' definitions of "burglary," when the offense contains the basic elements of a "generic burglary," which are "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 598-99, 110 S.Ct. 2143. It appears Cantrell's offense fits within Taylor's definition of "burglary." In Cantrell's case, however, we need not analyze whether Cantrell's conviction constituted "burglary" as defined in Taylor, because Cantrell's offense was clearly a "crime of violence" under the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause of § 4B1.2(a). Indeed, Taylor made clear "[t]he [government remains free to argue that any offense — including offenses similar to generic burglary — should count towards enhancement as one that 'otherwise involves conduct that presents a serious potential risk to another!.]' " Id. at 600 n. 9,110 S.Ct. 2143. In concluding Cantrell's second-degree burglary conviction was a "crime of violence," under the "otherwise involves" clause, the district court correctly anticipated the Supreme Court's decision in James v. United States, 550 U.S.-, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), which was decided after Cantrell's sentencing. In James, the Court held attempted burglary, as defined by Florida law, is a "violent felony" under the "otherwise involves" provision of the ACCA. Id. at 1597-98. The Court examined whether the risks posed by attempted burglary were similar to the risks posed by the most closely related enumerated offense — completed burglary. Id. at 1594. In concluding attempted burglary posed a "serious risk of potential physical injury to another," the Court reasoned: The main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party — whether an occupant, a police officer, or a bystander— who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress. Id. at 1595-96. This reasoning applies with equal force in Cantrell's case. Cantrell unlawfully entered an "inhabitable structure" "for the purpose of committing stealing therein." Missouri law limits the definition of "in habitable structure" to only those structures where people live, carry on business, assemble, or spend the night. See Mo. Rev.Stat. § 569.010(2). Thus, regardless of whether the "inhabitable structure" Cantrell unlawfully entered was a house, car, boat, airplane, or other "inhabitable structure," there existed the risk of a violent confrontation between Cantrell and the occupant, the police, or another third party. We therefore conclude the district court did not err in determining, regardless of whether Cantrell's state court burglary conviction was a "generic burglary" as defined in Taylor, Cantrell was subject to an increased range of punishment as a career offender under U.S.S.G. § 4B1.1, because Cantrell's state court second-degree burglary conviction constituted a "crime of violence" under the "otherwise involves conduct that presents a serious potential risk of physical injury to another" clause of U.S.S.G. § 4B1.2. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. . The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable James C. England, United States Magistrate Judge for the Western District of Missouri. . Cantrell asserts the magistrate and the district court should have discounted the confidential informant's information because Deputy Wallace gave testimony regarding the informant's information that was "not credible, reliable, or consistent." However, "[a] district court's determination as to the credibility of a witness is virtually unreviewable on appeal." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995) (citations omitted). Cantrell provides no basis for concluding the district court clearly erred in crediting Deputy Wallace's testimony that he had reliable information from an informant saying Cantrell was at the James residence. . In James's motion to suppress, which Cantrell joined, James argued her Fourth Amendment rights were violated when officers allegedly trespassed on her father's, Charles James's, property to effectuate her arrest. Cantrell makes a vague reference to this issue in his brief but does not develop the point with any argument or case citations. To the extent Cantrell raises this issue, we agree with the district court's conclusion no Fourth Amendment violation occurred because officers were clearly operating under a good faith belief they had consent to enter the Charles James property. On at least two separate occasions, Charles James had given officers consent to enter his land any time the officers wanted and to go anywhere the officers wanted to go to thwart any illegal activity. Although Charles James gave this consent approximately two years earlier, there was no testimony Charles James's consent was limited to a particular time period or was ever withdrawn. . Cantrell's reliance on United States v. Manning is misplaced. In Manning, the defendant claimed to be an unwitting backseat passenger in a car when the front seat passenger dropped an unregistered gun out the front window. 618 F.2d at 46-47. We reversed the conviction in Manning for failure to submit a "mere presence" instruction because, unlike in Cantrell's case, the defendant in Manning presented testimony regarding his role in the offense ("merely a backseat passenger") which supported a "mere presence" instruction. Id. at 46, 48. . The relevant language in the ACCA is almost identical to the language in U.S.S.G. § 4B 1.2(a). . At Cantrell's sentencing, in an effort to show Cantrell burglarized a "dwelling," the government presented Cantrell's deposition testimony from a 2006 civil case, in which Cantrell testified his 1988 conviction was for burglarizing a house that was being built. Cantrell objected, arguing the district court was precluded from considering his deposition testimony under Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (explaining the general requirement that sentencing judges "look only to the fact of conviction and the statutory definition of the prior offense," excepting "a narrow range of cases," to determine whether an offense constituted "generic burglary") and Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (further explaining a sentencing court may not examine police reports or complaint applications to determine whether an earlier guilty plea supports a conviction for "generic burglary"). The district court admitted Cantrell's deposition testimony as an exhibit, but stated, "I want to hear the rest of the argument before I'll make a decision as to whether it'll be part of my decision-making here." After hearing arguments, the district court made clear it did not find it necessary to consider the deposition, regardless of the type of "inhabitable structure" Cantrell burglarized or whether his crime constituted "generic burglary" as defined in Taylor, because Cantrell's crime was a "crime of violence" under the "otherwise involves" clause of § 4B1.1.

439 U.S. 988

Sup. Ct. Va. Cer-tiorari denied.

52 Cust. Ct. 370

Oliver, Chief Judge: This case was the subject of decision in W. J. Byrnes & Co., Inc. v. United States, 50 Cust. Ct. 249, Abstract 67546, wherein we overruled the protest for insufficient proof. On motion of defendant, motion for rehearing was granted. W. J. Byrnes & Co., Inc. v. United States, 50 Cust. Ct. 341, Abstract 67850. At the hearing pursuant to the order granting rehearing, counsel for the respective parties submitted the case on an agreed set of facts showing that the merchandise, described on the invoice as "art. birds w/feathers," to which the protest is limited, is properly classifiable under the provision in paragraph 1539(b) of the Tariff Act of 1930, as modified by T.D. 54108, for manufactures wholly or in chief value of a product of which a synthetic resin or resinlike substance is the chief binding agent, with a dutiable assessment at the rate of 21 cents per pound and 17 per centum ad valorem, as claimed by plaintiff, rather than at the rate of 50 per centum ad valorem under paragraph 1518 of the Tariff Act of 1930, as assessed by the collector. The protest is sustained and an order will issue directing assessment of duty on the item in question, as hereinabove identified, at 21 cents per pound and 17 per centum ad valorem, under said modified paragraph 1539(b), with duty amounting to $60.40, and allowance to plaintiff of $59.46, as shown by the official papers and as agreed to by counsel for the respective parties. Judgment will be rendered accordingly.

50 Cust. Ct. 315

Opinion by Donlon, J. In accordance with stipulation of counsel that tbe merchandise consists of decorated compotes, bowls, etc., tbe same as those tbe subject of Abstracts 60938 and 63262, tbe claim of the plaintiff was sustained.

181 L. Ed. 2d 547

Motion of Freedom Watch for leave to intervene denied.

11 Cust. Ct. 247

Opinion by Cole, J. In accordance with stipulation of counsel that the Radium D in question is similar in all material respects to the commodity involved in Firestone Tire & Rubber Co. v. United States (10 Cust. Ct. 227, C. D. 759), the claim for free entry under paragraph 1749 (19 U. S. C. 1940 ed. § 1201, par. 1749) was sustained.

18 T.C. 444

OPINION. Van Fossan, Judge: It is the petitioner's contention that no loss is to be recognized on the surrender of the 20,000 shares of old stock in the reorganization in 1939 and that the basis for the new stock includes the cost of the debt and the old stock in measuring the loss on the sale of the new stock in 1941. In support of this argument it is urged that no gain or loss is to be recognized to Admiral in 1939 if the old stock in American was exchanged in pursuance of a plan of reorganization solely for stock or securities in the reorganized corporation. The petitioner relies upon section 112 (b) (3) of the Internal Revenue Code. The petitioner points out that no gain or loss is to be recognized because the 20,000 shares of old common stock were exchanged solely for the new stock in America. To qualify under section 112 (b) (3), the shares of stock exchanged must be in a corporation a party to the reorganization. A reorganization is defined in section 112 (g) (1) (E), I. R. C., to include "a recapitalization." The latter term requires a "reshuffling of a capital structure within the framework of an existing corporation." Helvering v. Southwest Consolidated Corporation, 315 U. S. 194. American was recapitalized if there existed in the reorganization the required continuity of interest by reason of Admiral's surrender of its old stock for its new proprietary interest. Although Admiral owned all of the preferred stock and approximately 42 per cent of the new common stock, including the shares held by the Dollar family or corporations controlled by them, after the reorganization, instead of all of the stock as before, a reorganization may require a downward adjustment of the rights of participants. Hoagland Corporation, 42 B. T. A. 13, affd. 121 F. 2d 962; Miller v. Commissioner, 84 F. 2d 415; Seiberling Rubber Co. v. Commissioner, 169 F. 2d 595. Since the recapitalization consisted of the surrender of old securities and stock of the corporation, together with claims against it for the new shares of stock of the same company, the surrender of the old stock and receipt of the new was in pursuance of the plan of reorganization. The fact that petitioner also surrendered claims against American as additional consideration would not preclude the application of section 112 (b) (3) if stock was also given in exchange. United Gas Improvement Co., 47 B. T. A. 715, affd. (C. A. 3) 142 F. 2d 216, certiorari denied 323 U. S. 739. Only stock was received in the reorganization so that if the old shares of stock were part of the consideration the exchange was solely for stock or securities. The focal point of controversy in the first issue is whether the surrender of the old stock was part of the exchange or whether it was surrendered without receipt of value. It is respondent's contention that section 112 (b) (3) cannot apply because the old stock was surrendered for nothing and there could be no exchange since the creditors' claims do not qualify as securities. This argument is based upon the fact that all of the shares of new stock were issued for a specific dollar amount of debt claims against the corporation. It is also pointed out that the Referee-Special Master stated in his report that the old shares were surrendered by Admiral for nothing. It is respondent's position that Admiral received its proprietary interest in the recapitalized corporation solely for the surrender of its claims against American. The petitioner maintains that the old stock represented a valuable equity and that the District Court recognized this equity in the reorganization. The corporate balance sheets as of the date the reorganization petition was filed and as of the date the trustee had possession of the assets showed that the stock still possessed a book value of more than $600,000. It is claimed that the actual value of the stock was greater in October 1939 when the plan was confirmed because the market value of ships had increased following the beginning of World War II. The District Court stated in approving and confirming the plan of reorganization that the plan was to be submitted to the stockholder, that the stockholder was one of the classes for the purposes of the plan, that the appointment of new officers and directors was compatible with the interest of the stockholder, and that the stockholder had accepted the plan. Section 175 of the Bankruptcy Act, 11U. S. C. 575, requires the transmission of the approved plan to a stockholder affected by the plan. By the provisions of section 107,11U. S. C. 507, stockholders are "affected" by a plan if their interest is adversely affected thereby. The judge is required by section 197,11 U. S. C. 597, to divide creditors and stockholders into classes according to the nature of their claims and stock. Section 221, 11 U. S. C. 621, specifies that the judge shall confirm a plan if satisfied that the appointment of persons to be directors and officers is compatible with the interest of stockholders. Section 179,11 U. S. O. 579, declares that the judge shall fix a hearing for the consideration of the confirmation of a plan after the plan has been accepted in writing by the stockholders holding a majority of the stock, if the debtor has not been found to be insolvent. The District Court in the present instance did not need the acceptance of Admiral as a stockholder if American had been insolvent. The announcement of such acceptance might imply the fact that American was not insolvent. The other references to stockholders do not imply such a conclusion because they appear to be procedural requisites of a Chapter X reorganization. The plan of reorganization does not state that the surrender of stock was in consideration or exchange for anything. Nor does it state that nothing was to be received in exchange for the surrender of the stock. Admiral, as owner of all the stock in American and creditor to the extent of $35,290 of the $469,850 Class A claims and as creditor of $234,630 of the $288,720 Class B claims, as well as the holder of a mortgage which was not satisfied by transfer of the mortgaged property, was the principal party interested in the reorganization. The proceedings were based upon the inability of American to pay its debts as they matured. Unlike Pacific Public Service Co., 4 T. C. 742, insolvency is not a stipulated fact, and there was no allegation or finding of insolvency in the reorganization. Some book value was attributed to the old stock on the corporate balance sheets. The fair market value in October 1939 of four of the five ships was fixed by expert testimony at $650,000 for each vessel. The President Madison was sold in that month for $350,000, which was its fair market value. We cannot say that the valuation of assets was unduly high despite the fact that four of the five ships were surrendered to the Maritime Commission in payment of mortgage claims of $540,000 because the plan also required the Maritime Commission to allow credits on the new vessels to be purchased in consideration for the transfer to the Commission of American's ships after the satisfaction of the mortgage claims. While it is true that the Referee-Special Master stated in his report summarizing the confirmed plan that nothing will be received for the stock in the reorganization, this announcement does not foreclose our inquiry. In United Gas Improvement Go., supra, the reorganization plan itself expressly provided that the common and preferred shares would be turned in and canceled and nothing would be received for them. This Court there said that this statement does not determine, what actually was done or the tax consequences thereof. As above noted, our decision was affirmed by the Court of Appeals for the Third Circuit. The facts in this proceeding differ from those of the United Gas Improvement Go. case, but the principle there applied appears applicable here. The stock surrendered by Admiral possessed some equity value. We cannot say that even though the issuance of the new stock was measured in terms of creditors' claims that the stock issued to Admiral was not given in exchange for the cancellation of the claims and stock. That being true, we conclude that stock as well as creditors' claims were exchanged solely for stock in accordance with section 112 (b) (3). The new stock received in the recapitalized corporation must be given the same basis for purposes of determining gain or loss1 upon subsequent disposition as the property exchanged therefor under the provisions of section 113 (a) (6), I. R. C. Consequently the basis of the Class A and Class B stock at the time of its receipt is the combined basis of the old stock and the Class A and Class B creditor claims surrendered. This basis, at the time of sale in 1941, had been increased by the capital expenditures made in connection therewith subsequent to its acquisition but prior to its sale. The second issue is whether the petitioner's tranferor, Admiral, received net abnormal income attributable to other years in the determination of its excess profits tax for 1940. The petitioner contends that the sale of the ships, Admiral Laws and Admiral Senn, resulted in such abnormal income attributable to 1939 under the terms of section 721, I. R. C. Admiral sold no ships during the period 1936 to 1939, inclusive. The pertinent provisions of Regulations 112, section 35.721-1, specify that " It is abnormal for a taxpayer to derive income of any class only if the taxpayer had no gross income of that class for the four previous taxable years. " The income here in question, therefore, must be considered abnormal. The petitioner does not contend that the income received by it falls within the classes of income described in section 721 (a) (2). The statute declares that income of any class not described shall be subject to regulations prescribed by respondent with the approval of the Secretary. Regulations 112, section 35.721-2, provides that: Income which does not fall within those provisions may be grouped by the taxpayer, subject to approval by the Commissioner on the examination of the taxpayer's return, in such other classes as are reasonable in a business of the type which the taxpayer conducts, and as are appropriate in the light of the taxpayer's business experience and accounting practice. * Section 721 (b) declares that net abnormal income received in one year which is attributable to other years and thus excludible from the taxable year is to be determined under regulations of the respondent. The petitioner obtained the income in question by means of the sale of ships at a price which was greater than the amount spent on the purchase and rehabilitation of the vessels. As stated in Regulations 112, section 35.721-3, dealing with the amount of net abnormal income attributable to other years, "No portion of an item of net abnormal income is to be attributed to any previous year solely by reason of an investment by the taxpayer in assets, tangible or intangible, employed in or contributing to the production of such income." The petitioner urges that the income received in 1940 arqse from the enhancement in value of the ships, part of which occurred in 1939, and there is some evidence to this effect. However, expenditure of money in the purchase and rehabilitation of the ships was an investment and the sale of the vessels at a profit in the following year was the realization of a gain upon the investment. The enhancement in value of the ships cannot be separated, as a source of the income, from the investment in the vessels. Income from an investment includes the gain realized from the sale of the asset at a price greater than the amount invested. Since the sale of the ships produced the income, there is no doubt that the ships were tangible assets contributing to the production of the income. We conclude that the principles applied in Premier Products Go., 2 T. C. 445, rule this situation. Gain from investment cannot be attributed to prior years in the face of the respondent's regulation which is made controlling by the statute. Decisions will be entered under Rule 50. SEC. 112. RECOGNITION OF GAIN OR LOSS. (b) Exchanges Solely in Kind.— (3) Stock for stock on reorganization. — No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of tile plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. SEC. 112. RECOGNITION OF GAIN OR LOSS. * (g) Definition of reorganization. — As used in this section (other than subsection (b) (10) and subsection (1) and in section 113 (other than subsection (a) (22))— (1) The term "reorganization" means (E) a recapitalization, • SEC. 113. ADJUSTED BASIS FOR DETERMINING GAIN OR LOSS. (a) Basis (Unadjusted) op Propekti. — The basis of property shall be the cost of such property ; except that— «***»*• (6) Tax-free exchanges GEÑEKALLT. — If the property was acquired, after February 28, 1913, upon an exchange described in section 112 (b) to (e), inclusive, or section 112 (1), the basis (except as provided in paragraphs (15), (17), or (18) of this subsection) shall be the same as in the case of the property exchanged, decreased in the amount of any money received by the taxpayer and increased in the amount of gain or decreased in the amount of loss to the taxpayer that was recognized upon such exchange under the law applicable to the year in which the exchange was made. SEC. 721. ABNORMALITIES IN INCOME IN TAXABLE PERIOD. (a) Definitions. — For the purposes of this section— (1) Abnormal income. — The term "abnormal income*' means income of any class includible in the gross income of the taxpayer for any taxable year under this sub-chapter if it is abnormal for the taxpayer to derive income of such class, or, if the taxpayer normally derives income of such class but the amount of such income of such class includible in the gross income of the taxable year is in excess of 125 per centum of the average amount of the gross income of the same class for the four previous taxable years, or, if the taxpayer was not in existence for four previous taxable years, the taxable years during which the taxpayer was in existence. (2) Separate classes of income. — Each of the following subparagraphs shall be held to describe a separate class of income: (A) Income arising out of a claim, award, judgment, or decree, or interest on any of the foregoing; or (B) Income constituting an amount payable under a contract the performance of which required more than 12 months; or (C) Income resulting from exploration, discovery, prospecting, research, or development of tangible property, patents, formulae, or processes, or any combination of the foregoing, extending over a period of more than 12 months; or (D) Income includible in gross income for the taxable year rather than for a different taxable year by reason of a change in the taxpayer's accounting period or method of accounting; or (E) In the case of a lessor of real property, income included in gross income for the taxable year by reason of the termination of the lease; or (F) Income consisting of dividends on stock of foreign corporations, except foreign personal holding companies. All the income which is classifiable in more than one of such subparagraphs shall be classified under the one which the taxpayer irrevocably elects. The classification of income of any class not described in subparagraphs (A) to (F), inclusive, shall be subject to regulations prescribed by the Commissioner with the approval of the Secretary. (3) Net abnormal income. — The term "net abnormal income" means the amount of the abnormal income less, under regulations prescribed by the Commissioner with the approval of the Secretary, (A) 125 per centum of the average amount of the gross income of the same class determined under paragraph (1), and (B) an amount which bears the same ratio to the amount of any direct costs or expenses, deductible in determining the normal-tax net income of the taxable year, through the expenditure of which such abnormal income was in whole or in part derived as the excess of the amount of such abnormal income over 125 per centum of such average amount bears to the amount of such abnormal income. (b) Amount Attributable to Other Years. — The amount of the net abnormal income that is attributable to any previous or future taxable year or years shall be determined under regulations prescribed by the Commissioner with the approval of the Secretary. In the case of amounts otherwise attributable to future taxable years, if the .taxpayer either transfers substantially all its properties or distributes any property in complete liquidation, then there shall be attributable to the first taxable year in which such transfer or distribution occurs (or if such year is previous to the taxable year in which the abnormal income Is includible in gross income, to such latter taxable year) all amounts so attributable to future taxable years not included in the gross income of a previous taxable year.

463 U.S. 1206

Sup. Ct. Ala. Cer-tiorari denied.

502 U.S. 976

C. A. 11th Cir. [Certiorari granted, 498 U. S. 1119.] Case restored to calendar for reargument. Counsel are directed to submit supplemental briefs on the question whether the history of the Speedy Trial Clause of the Sixth Amendment supports the view that the Clause protects a right of citizens to repose, free from the fear of secret or unknown indictments for past crimes, independent of any interest in preventing lengthy pretrial incarceration or prejudice to the case of a criminal defendant. Justice Thomas took no part in the consideration or decision of this order.

531 U.S. 832

C. A. 10th Cir. Certiorari denied.

498 U.S. 850

C. A. 2d Cir. Certiorari denied.

190 U.S. App. D.C. 388

Opinion for the Court filed by Circuit Judge McGOWAN. McGOWAN, Circuit Judge: Petitioners in this direct review proceeding challenge a report and order of the Interstate Commerce Commission entered on remand from a previous decision of this court, National Association of Food Chains, Inc. v. ICC, 175 U.S.App.D.C. 346, 535 F.2d 1308 (1976). The ultimate issue for decision here is whether motor common carriers of loose and carcass meats must offer the service of unloading as part of their tariffs. I Petitioner Food Marketing Institute is a nonprofit trade association of food wholesalers and retailers. The other petitioners, Eastern Meat Packers Association and Colorado Meat Dealers Association, are trade associations of independent meat packers. The intervenors are motor common carriers that transport loose and carcass meats pursuant to certificate authority of the Commission. The prior history of this case is summarized in Natl Ass'n of Food Chains, supra, and will be recapitulated only briefly here. Beginning in 1958, a number of carriers filed tariffs providing for unloading services of loose and carcass meats. In 1968, thirty-two carriers filed tariffs that eliminated all carrier unloading. These tariffs were challenged by shippers and consignees, and there followed a complex series of administrative and judicial proceedings, during the course of which the proposed tariffs were allowed to become effective. The present controversy was seeded by a 1972 decision by Administrative Law Judge David H. Allard that carrier unloading had become sufficiently established as a trade practice to bar its cancellation by the carriers. Unloading Restrictions on Meats and Packinghouse Products, I.C.C. Doc. No. 35,-054 (Jan. 17, 1972). On October 18,1974, the Commission substantially affirmed Judge Allard's decision. Unloading Restrictions on Meats and Packinghouse Products, 346 I.C.C. 775 (1974) [1974 Order]. The Commission first formulated a general analytical approach to determining a carrier's obligation to provide unloading services. See text accompanying note 12 infra. Applying this analysis, the Commission concluded that there was a demonstrated commercial need for unloading services and that the carriers' reasons for desiring to terminate the service were insufficient in light of the hardship that would be caused some consignees and shippers. 346 I.C.C. at 793-94. On March 14, 1975, however, the Commission on reconsideration reversed itself as to this issue, holding for the first time that carriers were not obligated to provide unloading services. Unloading Restrictions on Meats and Packinghouse Products, 349 I.C.C. 189 (1975) [1975 Order]. The Commission relied, in large measure, on inferences drawn from another case on its docket, in which three motor carriers proposed to eliminate the unloading service while reducing their line-haul rates. Noting that there had been only one protest to that filing, the Commission concluded that shippers and consignees were willing to accept, as a compromise, a reduction in rates in exchange for loss of the unloading service. 349 I.C.C. at 199. On direct review, this court vacated and remanded the 1975 Order. National Association of Food Chains, Inc. v. ICC, 175 U.S.App.D.C. 346, 535 F.2d 1308 (1976). The court concluded that the order under review was the product of informal rulemaking, to be reviewed under the "rational basis test, but found the order defective even under this relatively lenient standard. The Commission's principal error, according to the court, was its inference from the lack of protests in another docket that shippers and consignees were willing to acquiesce in the elimination of carrier unloading provided they received a reduction in line-haul rates in exchange. Observing that "[i]t does not appear that any such acquiescence ever existed," the court held that the Commission's inference was not supported by the evidence. The court proceeded to analyze three further grounds suggested as support for the Commission's decision. One was the argument, accepted by the Commission for the first time in its 1975 Order, that consignee unloading had in fact been the prevalent trade practice through the years. The court observed that this conclusion, if supported by the evidence, would provide sufficient support for a consignee-unloading rule, but found that the Commission had not demonstrated a rational basis for its conclusion. The second and third possible grounds were abusive practices toward carrier personnel that allegedly occurred at consignees' receiving platforms, and health regulations of various localities that allegedly prohibited unloading of loose and carcass meats by unqualified carrier employees. The court found it unnecessary to decide whether the existence of these abusive practices or restrictive health regulations had been adequately demonstrated: even if there were "substantial factual bases for both considerations, they alone may not justify a decision that all of the carriers were entitled to discontinue unloading serv ices." The flaw in the Commission's analysis of these issues, in the court's view, was its failure to explain why it had deviated from its previous conclusion that the problems of abuses and health regulations could be solved by means other than elimination of the carrier unloading service. On remand, the Commission adhered to its conclusion that the motor common carriers need not offer the services of unloading loose and carcass meats, Report and Order of the Commission on Further Consideration, Unloading Restrictions on Meats & Packinghouse Products, I.C.C. Doc. No. 35,-054 (June 23, 1977) [1977 Order], and petitioners once again brought the case before this court on direct review. II The major thrust of petitioners' challenge is to the Commission's analysis on remand of the evidence of record. Petitioners argue that the Commission's factual conclusions were not supported by the evidence and that the Commission improperly imposed the burden of proof on them rather than on the carrier proponents of the tariffs. A. As we have already noted, see text accompanying note 5 supra, this court in Nat'l Ass'n of Food Chains held that the Commission's determination was to be reviewed under a "rational basis" test. Petitioners argue, however, that this court should now apply the more demanding "substantial evidence" test used to review agency adjudication and formal rulemaking, see Administrative Procedure Act, 5 U.S.C. § 556, 557. Their position is that, while the Commission's previous decision resulted in a rule of general applicability, and was therefore the product of informal rulemaking, the order now under review was limited in scope to the particular tariffs at issue and hence should be considered the result of an adjudication. Our application of the "rational basis" test in Nat'l Ass'n of Food Chains, however, was not based on the fact that the agency decision under review was of general applicability. Rather, we concluded that since the "hearing" required in ratemaking proceedings by the Interstate Commerce Act, 49 U.S.C. § 316(g), was not the equivalent of a hearing for rules "made on the record" under the Administrative Procedure Act, 5 U.S.C. § 553(c), the Commission's decision was the product of informal rulemaking rather than adjudication. 175 U.S.App.D.C. at 351 n.8, 535 F.2d at 1313 n.8. See United States v. Florida East Coast R. Co., 410 U.S. 224, 234-38, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). This conclusion, of course, was not contingent on the generality of the Commission's decision. Our review is therefore limited to a determination of whether the Commission's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A). We must uphold the agency if there exists a rational basis for the decision, Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Nat'l Ass'n of Food Chains, supra, 175 U.S.App.D.C. at 352, 535 F.2d at 1314. Although our inquiry into the facts is to be "searching and careful," the ultimate standard of review is narrow. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, because of the posture of this case, a somewhat greater degree of scrutiny than might otherwise be appropriate is in order. For one thing, the agency order under review here reaffirmed a decision that itself departed drastically from the Commission's 1974 Order requiring these carriers to provide unloading services. While agencies may not be bound under the doctrine of stare decisis to the same degree as courts, see, e. g., FCC v. WOKO, Inc., 329 U.S. 223, 228, 67 S.Ct. 213, 91 L.Ed. 204 (1946); New Castle County Airport Comm'n v. CAB, 125 U.S.App.D.C. 268, 270, 371 F.2d 733, 735 (1966), cert. denied sub nom. Board of Transportation v. CAB, 387 U.S. 930, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967), it is at least incumbent upon the agency carefully to spell out the bases of its decision when departing from prior norms. Secretary of Agriculture v. United States, 347 U.S. 645, 652-53, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); Office of Communication of United Church of Christ v. CAB, (D.C.Cir. Sept. 11, 1978), slip op. at 13. Secondly, the order under review here comes to precisely the same conclusion as the order previously remanded by this court. To be sure, where, as here, the remand merely requires the agency further to elaborate its reasoning, there is no requirement that the agency arrive at a different substantive result upon reconsideration. At the same time, we must recognize the danger that an agency, having reached a particular result, may become so committed to that result as to resist engaging in any genuine reconsideration of the issues. The agency's action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result. Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). B. Before evaluating whether the Commission's order passes muster under this standard of review, it is necessary to examine the legal framework within which the Commission evaluated the facts of record. The substantive statute at issue is section 216(b) of the Interstate Commerce Act, 49 U.S.C. § 316(b), which provides in relevant part: It shall be the duty of every common carrier of property by motor vehicle to provide safe and adequate service, equipment, and facilities for the transportation of property in interstate or foreign commerce [and] to establish, observe, and enforce just and reasonable . . . regulations and practices relating thereto The Commission, in its 1974 Order, exercised its broad discretion in interpreting the meaning of "safe and adequate service" in the context of a motor carrier's duty to load or unload: [W]e conclude that the question whether loading or unloading, in connection with pickup and delivery, is an essential part of the transportation service must depend upon a case-by-case analysis of the terms of a carrier's outstanding authority in light of the statutory obligation to provide a complete service, the characteristics of the commodities transported, and the commercial needs and practices of the industry or shippers served. Petitioners challenge this construction as improperly imposing the burden of proof as to the reasonableness of the proposed tariff changes on them. They correctly point out that under section 216(g) of the Interstate Commerce Act, 49 U.S.C. § 316(g), the burden of proof is on the carriers to show the rule change to be just and reasonable. We do not find, however, that the Commission's construction imposes a burden of proof either on the carriers or on the opponents of the tariffs; rather, it simply lists the factors to be considered by the Commission in each case. The Commission's analytical framework does not explicitly recognize the needs of the carriers as a factor to be considered. The factor of the "characteristics of the commodities transported," however, can reasonably be read as incorporating a concern for carrier interests. For example, the problem of abuses as consignees' receiving platforms resulted from the fact that loose and carcass meats generally require two men to unload. Similarly, the problems with health regulations resulted from the fact that the commodities transported are foodstuffs that come into direct contact with the skin and clothing of the worker during unloading. Thus, it was not improper for the Commission, under its analytical framework, to consider the interests of carriers as well as those of consignees and shippers. In practice, the Commission's analysis has functioned as a balancing test, a weighing of opposing interests, and we will so treat it herein. C. Our duty, then, is to determine, under the standard of review previously described, whether the Commission properly identified the opposing interests in light of the facts of record, and rationally balanced them against each other. Petitioners charge that the 1977 Order was not so based, and that the Commission, in evaluating the facts, improperly imposed the burden of proof on them. We find, however, that the Commission's analysis of .the competing needs of the carriers, on the one hand, and the shippers and consignees, on the other, was rationally based and did, in substance, impose a correct burden of proof. The Commission, in its 1977 Order, gave greatly expanded consideration to the needs of the carriers. It concluded from the record that, because of a number of circumstances, drivers were frequently unable to unload the meat themselves. Drivers not accompanied by a co-driver were physically unable to unload the meat without assistance of at least one other worker. Drivers were also frequently unable to obtain and keep current the local health credentials needed for the handling of these commodities. Even if the driver could otherwise unload, he was frequently prevented from doing so by practices at the consignees' receiving platform. Either the consignee would require that the unloading be undertaken by its own employees, or individuals not formally associated with the consignee would force the driver to hire gangs of casual laborers at extortionate rates. These problems were apparently exacerbated by the increasing use of independent' owner-operators who delivered the commodities pursuant to a contract with the carrier. These owner-operators lacked the resources to combat the demands of individuals at the consignees' receiving platforms and were unable to control the spiralling prices of unloading services. As a result, the carriers experienced a high number of owner-operator resignations and had difficulty in recruiting replacements for those who quit. We conclude that the Commission, in its 1977 Order, adequately demonstrated the existence of abusive practices and local health regulations that had a substantial detrimental effect on the carriers. Our decision in Nat'l Ass'n of Food Chains, however, held that the mere existence of these problems was not sufficient; it was necessary also that the Commission provide reasons why alternative solutions, not involving elimination of carrier unloading, would be unworkable. 175 U.S.App.D.C. at 355, 535 F.2d at 1317. This the Commission failed to do in its 1975 Order. The 1977 Order, in contrast, provides a detailed explanation of why possible alternative solutions are not feasible. The Commission rejected the alternative of a two-tier tariff, providing for higher rates for carrier unloading than consignee unloading, because the drivers would still be subject to arbitrary charges at the consignees' receiving platforms. 1977 Order, at 24. It rejected the possibility of detention charges, in cases where drivers were delayed for refusing to deal with local crews, on the ground that this alternative had always been available but had not prevented the abuses. Id. Also found inadequate was the alternative of surveillance and corrective action by the Commission itself. The Commission noted, primarily, that "policing of all the locations where the subject traffic is delivered would be an enormous drain on the Commission's limited resources." Id. The 1977 Order also gives more careful attention to the needs of the consignees and shippers. The Commission, for one thing, has abandoned its inference of acquiescence in consignee unloading drawn from the lack of protests to a tariff filing in another proceeding in which carrier unloading was eliminated. See text accompanying notes 6-7 supra. Our decision in Nat'l Ass'n of Food Chains, of course, disapproved this inference. 175 U.S.App.D.C. at 352, 535 F.2d at 1315. The Commission has also receded from its position in the 1975 Order, 349 I.C.C. at 199, that consignee unloading was the trade practice in the industry. It now takes the agnostic view that the "evidence shows that carrier unloading of these commodities was not sufficiently established as a trade practice to create, in itself, a commercial necessity for carrier unloading." 1977 Order, at 21. We are of the view that the evidence of record on this issue is simply too sketchy to support a definitive conclusion one way or the other. There is virtually no evidence as to whether, prior to 1958, tariffs contained carrier unloading provisions, or as to the extent of motor carrier transportation of these commodities during that period. The evidence shows that seven of the sixteen respondent carriers either adopted carrier unloading provisions or commenced unloading in 1958 or thereafter; but the record is silent as to when the remaining nine carriers may have adopted such a practice. Although it was contended that the carriers commenced the unloading service in an effort to wrest business away from the railroads, the record is devoid of specific support for this conclusion. The sum of this evidence, in our view, was insufficient to compel any particular conclusion on the trade practice question. The Commission's wavering approach to the issue best illustrates this point: in 1974, it affirmed the decision of Administrative Law Judge Allard, which had found carrier unloading to be sufficiently established as a trade practice to bar its cancellation by the carriers, 1974 Order, 346 I.C.C. at 795; in 1975, it noted that "consignee unloading has, in fact, been the prevalent practice over the years," 1975 Order, 349 I.C.C. at 199; and in 1977, as we have noted, it shifted to a non-committal middle ground. In our view, the Commission's 1977 conclusion was a rational response to the record evidence before it. The paucity of evidence on the trade practice question does not constitute a serious flaw in the Commission's analysis because, in our view, the question of trade practice is an aspect of a broader inquiry into the commercial needs of consignees and shippers. The 1977 Order analyzes with some care the extent to which elimination of carrier unloading would prejudice either group in the running of their businesses. The Commission found, on the basis of the evidence, that while consignee unloading "may cause some inconvenience at certain locations," consignees were physically capable of performing the unloading task. 1977 Order, at 15-16. Many consignees already employed unloading personnel; others could hire new workers. In either case the consignees might incur additional costs, but these expenses could presumably be recouped through reductions in line-haul rates. The Commission also noted the possibility that consignees could hire casual laborers on a piecework basis in a way similar to the common practice under the carrier unloading rule. In the Commission's view, consignees would have much greater control over such casual laborers and therefore would not be subject to the abuses that grew up under the carrier unloading regime. 1977 Order, at 15-16. The Commission also found that a consignee unloading rule would not impair the shippers' business. Id. at 17. Because these conclusions are rationally based, see text following note 10 supra, we must accept them in the exercise of our limited review function. The Commission, having evaluated the needs of the carriers and those of the consignees and shippers, then had to balance those needs against each other, see text accompanying note 12 supra; note 17 and accompanying text supra. This balanc ing will inevitably involve questions of policy that the Commission, because of its expertise and specialized function, is best situated to evaluate. We therefore review the Commission's balancing of the competing interests with considerable deference, cf. Industrial Union Dep't v. Hodgson, 162 U.S. App.D.C. 331, 338, 499 F.2d 467, 474 (1974). The Commission described its reasons for striking the balance as it did as follows: In making these findings, we recognize that a consignee-unloading rule may entail some inconvenience at certain locations, and we do not take this fact lightly. We believe that shipper convenience must be served to the greatest extent possible. However, there comes a point where practical limitations on the carriers' service capabilities must be recognized, and we believe that such a point is reached in these proceedings. We are persuaded on this record that the problems resulting from mandatory unloading by respondents are of an intractable nature and are of far greater magnitude than those that result from the consignee-unloading rule. It is for this reason only, and after the most careful consideration of the facts presented, that we have concluded that a mandatory requirement for a carrier-unloading provision should not be imposed herein. We find that the Commission has here provided sufficient articulation of its reasons for permitting elimination of the carrier unloading rule. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Petitioners raise one additional challenge to the Commission's treatment of the evidence. They claim that while the burden of proof is placed by statute on the carrier proponents of the tariffs, 49 U.S.C. § 316(g), the Commission in its 1977 Order improperly shifted to burden to the tariff's opponents. There is, indeed, language in the 1977 Order that might be read to convey this impression. The Commission for example, stated that "the evidence falls short of proving" the existence of a commercial need for carrier unloading. 1977 Order, at 13 (emphasis added). Similarly, it found that "there has been no convincing demonstration that consignees cannot physically incorporate the unloading of loose and carcass meats into their operations." Id. at 16 (emphasis added). The Commission ultimately found, however, that the needs of the carriers are "of far greater magnitude" than those of the consignees and shippers. 1977 Order, at 27. While some of the Commission's language was perhaps unfortunate, we are persuaded that the 1977 Order, taken as a whole, did in fact properly allocate the burden of proof. Ill Petitioners contend that, even if the Commission's factual conclusions are sustainable on the record, the tariffs should have been rejected because carrier unloading is required by statute. We find no merit to these arguments. Petitioners first cite section 216(b) of the Interstate Commerce Act, 49 U.S.C. § 316(b), quoted in text accompanying note 11 supra. The carriers' obligation under this statute to provide a "safe and adequate service" has been interpreted by the Commission to impose a duty to provide a "complete" transportation service. Part of this complete service, according to petitioners, is the obligation of carriers of loose and carcass meats to provide unloading services. We agree with the Commission's 1977 Order, however, that the obligation to provide a complete service does not require the carriers to offer every service they might have authority to offer under the terms of their certificates. See 1977 Order, at 10. A contrary interpretation, as the Commission points out, would lead to the danger that carriers would avoid entering into new and innovative services out of a fear of being "locked in" to obligations that might prove detrimental. Id. at 29. Petitioners next cite to the National Transportation Policy, preamble to the Interstate Commerce Act, 49 U.S.C. preceding § 1, which expresses the national policy "to recognize and preserve the inherent advantages" of each mode of transportation. They argue that an inherent advantage of motor carriers is their ability to provide a complete service, store-door to store-door, including loading and unloading. It is possible that, the ability of a motor carrier to make store-door deliveries might be seen as an inherent advantage of motor transportation within the meaning of the National Transportation Policy. Cf. ICC v. Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102 (1947) (inherent advantage of cheaper rates for barge transportation). But this postulated advantage of motor carriers, which stems from their greater mobility as compared with other forms of transportation, in no way supports the argument that unloading is an inherent advantage of motor transportation. We conclude that the 1977 Order has adequately met the objections raised by this court in Nat'l Ass'n of Food Chains, supra. Because the Commission has now presented a rational basis for its conclusion that the carriers may eliminate from their tariffs the service of unloading loose and carcass meats, its order is Affirmed. . Food Marketing Institute is the successor organization to the National Association of Food Chains, Inc., a petitioner in the prior litigation before this court. . Intervenors participating in the briefing of this case are Southern Motor Carriers Rate Conference, Inc., Refrigerated Transport Co., Inc., Altruk Freight Systems, Inc., Bonney Motor Express, Inc., Central and Southern Truck Lines, Inc., Clay Hyder Trucking Lines, Inc., Coldway Food Express, Inc., Colonial Refrigerated Transportation, Inc., Rowley Interstate Transportation, Inc., Subler Transfer, Inc., and Watkins Motor Lines, Inc. .The record is unclear as to the situation prior to 1958. See text accompanying note 22 infra. .The Commission upheld the 1974 Order's conclusion that the cost data submitted by the carriers were inadequate to support their proposed rates. Unloading Restrictions on Meats and Packinghouse Products, 349 I.C.C. 189, 191-96 (1975). It therefore ordered the tariffs cancelled. The carriers did not «seek judicial review of this ruling; consequently, the cost justifications of particular rates are not at issue in this case. . 175 U.S.App.D.C. at 351-53, 535 F.2d at 1313-15. See text accompanying note 10 infra. . Id. 175 U.S.App.D.C. at 351-52, 535 F.2d at 1315-16. . Id. 175 U.S.App.D.C. at 353, 535 F.2d at 1315. . Id. 175 U.S.App.D.C. at 354, 535 F.2d at 1316. . Id. 175 U.S.App.D.C. at 355, 535 F.2d at 1317. . This section provides that: After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on ,the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. . See also notes 29-30 and accompanying text infra. . 346 I.C.C. at 792. . Section 216(g) provides: At any hearing involving a change in a rate, fare, charge or classification, or in a rule, regulation, or practice, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, charge, classification, rule, regulation, or practice is just and reasonable. . Although the Commission's construction of § 216(b) is not invalid as an improper allocation of the burden of proof, we have somewhat greater difficulty with' the way in which the Commission applied this standard to the facts of record in this case. See text accompanying note 27 infra. . See note 18 infra; text accompanying notes 18-19 infra. . See note 18 infra. . As the Commission put it in its 1977 Order: The third factor, the commercial needs and practices of the industry or shippers served, also has a clear bearing on whether the carriers themselves should be required to perform the particular service. The existence of such needs and practices may warrant the continuation of particular carrier services despite problems incurred by the carriers in providing them. However, this is not to say that major carrier operating problems should be ignored to avoid minor shipper inconvenience. Rather, the factors must be balanced, and the best practical solution sought. 1977 Order, supra, at 10 (emphasis added). See also text accompanying note 26 infra. .The Commission found that Beef carcasses weigh about 175 pounds, and are transported unwrapped, suspended by hooks from overhead rails in the trailer. Their unloading requires at least two men, and must Be done under the most sanitary conditions possible. One unloader must grasp the beef with both arms, lift it, and after another loader disengages and removes the hook, carry the beef out of the trailer to a rail on the receiving platform where it is hung by another hook. 1977 Order, supra, at 11. . Petitioners suggest that, insofar as these abuses stem from the carriers' increasing use of owner-operators, the proper subject for Commission regulation is the contractual relation between the carriers and the owner-operators. It was within the Commission's discretion, however, to seek to achieve its regulatory objectives through the existing tariff process rather than through new and untested regulation of owner-operators. Moreover, it is difficult to see how control of the carrier- — owner-operator contract could eliminate the coercive practices at the consignees' receiving platforms. . This analysis is presented in the Commission's 1977 Order in conclusory terms, without reference to the record support, if any, for the inferences reached. It would have been more helpful had the Commission, in its order as distinct from counsel's brief on appeal, explicitly demonstrated such record support. First and foremost, citations to the record are necessary if judicial review is to be meaningful. In administrative cases, where the record can run in the thousands of pages, the court cannot be expected fully to grasp the factual issues without some sort of guide as to where the relevant passages are located. In this case, where judicial review of the Commission's order was a near-inevitability, there was a special reason for the agency to provide record references. In addition to facilitating judicial review, references to the record are persuasive indications that the agency did consider the relevant facts. When only the brief prepared by the agency's counsel presents the record references during appellate litigation, the reviewing court may be inclined to give the agency's stated justifications somewhat less credence. Despite these considerations, we are convinced that the record references provided by the Commission's counsel demonstrate that the 1977 Order was indeed based on meaningful review of the record and not on mere abstract speculation. .Petitioners suggest that the Commission, rather than policing all locations, could simply investigate instances of reported abuses and initiate enforcement proceedings where necessary. The Commission could rationally have concluded, however, that given the coercive setting at the consignees' receiving platforms, abuses were likely to be under-reported, and that even when reports were made, after-the-fact Commission investigation and enforcement was unlikely to have a major deterrent effect. . 1977 Order, at 20. . Id. . Id. at 21-22. .As we have noted, rates are not an issue in this case, see note 4 supra. The Commission in its 1974 Order, however, indicated that it would not accept elimination of carrier unloading without a concomitant reduction in line-haul rates. 1974 Order, 346 I.C.C. at 786. . 1977 Order, at 27. . Although this argument is framed as an objection to the Commission's analytical framework, see text accompanying note 12 supra, its real force goes to the way in which the Commission has actually applied that framework. See text accompanying notes 13-14 supra. . This court in Nat'l Ass'n of Food Chains found it unnecessary to reach this question. See 175 U.S.App.D.C. at 356 n.13, 535 F.2d at 1318 n.13. .See Restrictions on Service by Motor Common Carrier, 111 M.C.C. 151 (1970). See also 49 C.F.R. § 1307.27(k)(l) (1974) ("No provision may be published in tariffs [which results in restricting] service to less than the carrier's full operating authority. . . . "). . This argument was accepted by the Commission in its 1974 Order, 346 I.C.C. at 795. . The National Transportation Policy provides that: It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preference or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions; — all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy. 49 U.S.C. preceding § 1.

248 U.S. 594

Dismissed, on motion of The Solicitor General for the United States.

1 Cust. Ct. 375

Opinion by Sullivan, J. It was stipulated that the chicken rings in question are the same as those passed upon in United States v. Perry (25 C. C. P. A. 282, T. D. 49395). The claim for free entry under paragraph 1604 was therefore sustained.

504 U.S. 925

C. A. 3d Cir. Certiorari denied.

502 U.S. 871

Sup. Ct. Ind. Certiorari denied.

501 U.S. 1224

499 U. S. 982; 499 U. S. 467; 499 U. S. 983; 500 U. S. 910; 499 U. S. 962; 500 U. S. 906; 500 U. S. 906; 499 U. S. 963; 499 U. S. 978; 499 U. S. 928; 499 U. S. 940; 499 U. S. 964; 499 U. S. 978; 499 U. S. 942; 499 U. S. 966; 500 U. S. 908; 500 U. S. 929; and 500 U. S. 926. Petitions for rehearing denied. No. 90-7192. No. 90-7194. No. 90-7337. No. 90-7509. No. 90-7615.

18 Cust. Ct. 528

Kincheloe, Judge: These appeals for reappraisement have been submitted for decision upon the following stipulation of counsel for the parties hereto: (Stipulation omitted.) On the agreed facts I find the export value, as that value is defined in section • 402 (d) of the Tariff Act of 1930, to be the proper basis for the determination of the value of the merchandise here involved, and that such values are the appraised values, less the additions made by the importer on entry because of advances by the appraiser in similar cases. Judgment will be rendered accordingly.

339 F.3d 407

OPINION KRUPANSKY, Circuit Judge. This appeal arises from a decision by the Board of Immigration Appeals ("BIA" or "Board") to dismiss a motion by petitioner, Cornel Viorel Scorteanu ("Scorteanu"), to reopen deportation proceedings pursuant to section 242B(c)(3) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. § 1252b(c)(3), alleging ineffective assistance of counsel. For the reasons discussed below, the Board's order of dismissal is affirmed. I. Background Petitioner Scorteanu is a 31-year-old native and citizen of Romania, of Hungarian ethnicity, who entered the United States at Chicago, Illinois on June 20, 1994 as a B-2 visitor for pleasure. His visa authorized him to remain in the United States until December 19, 1994. On September 15,1994, petitioner applied for asylum. The Chicago Asylum Office referred his application to an Immigration Judge ("IJ"). Petitioner was served with an Order to Show Cause ("OSC"), dated September 6, 1995, charging deportability as an overstay under Section 241(A)(l)(c)(i) of the INA. During the pendency of his merits hearing, petitioner married a United States citizen. Petitioner retained Attorney Ronald A. Muresan ("Muresan") to represent him in his asylum case. On April 11, 1996, Scor-teanu appeared with Muresan before an IJ for a Master Calendar hearing where petitioner renewed his asylum application and the IJ scheduled an Individual Merits Hearing for November 19, 1996. On November 8, 1996, Muresan informed petitioner by telephone that the immigration court had rescheduled the merits hearing and would send Muresan a written notice of a new date. Attorney Muresan received a letter, dated November 8, 1996, by certified mail from the immigration court, advising that Scorteanu's deportation hearing was rescheduled for March 26, 1997. Mu-resan never advised petitioner of the new hearing date, nor did he file the requested notice of petitioner's change of address with the immigration court. In the months that followed, Scorteanu contacted Muresan several times regarding notice of a new hearing date and, each time, Mure-san informed petitioner that he would notify petitioner when he received the new hearing date. Unbeknownst to Scorteanu, during this period, Muresan was suspended and even tually disbarred from the practice of law. Muresan did not advise petitioner of this development nor inform the immigration court of his suspension. As a consequence of Muresan's representation, petitioner did not receive a copy of the hearing notice and neither Scorteanu nor Muresan attended the March 26, 1997 merits hearing where, consequently, petitioner was ordered deported in absentia to Romania. During 1997 and 1998 Muresan fraudulently advised Scorteanu that his asylum case was still pending before the immigration court. In early 1999, Scorteanu learned from members of the Romanian community in Michigan that Muresan had been disbarred. Scorteanu then turned to attorney Mo-sabi Hamed. Previously, after his 1996 marriage to a United States citizen, petitioner had retained Hamed to handle his 1-130 Immigrant Petition for Alien Relative. Throughout 1999, Scorteanu kept in contact with Hamed regarding his asylum petition even though Hamed was not petitioner's attorney of record for those proceedings. Hamed continued to advise Scorteanu that he had inquired into petitioner's asylum case and assured him that it was still pending. On January 18, 2000, Scorteanu retained new counsel. As a result of his new counsel's inquiry with the Immigration and Naturalization Service ("INS"), petitioner learned of the in absentia Order of Deportation of March 26, 1997 in late March of 2000. Nevertheless, Scorteanu waited until February 12, 2001 to file a Motion to Reopen Deportation Proceedings with the immigration court. For that proceeding Scorteanu submitted his own affidavit and an affidavit from former attorney Muresan detailing his ineffective assistance of counsel. In denying Scorteanu's Motion to Reopen, the IJ determined in her March 15, 2001 Order that petitioner had exceeded the statutory time limit of 180 days for filing a motion to reopen based on exceptional circumstances pursuant to INA § 242B(c)(3)(A). See Matter of A-A-, Int. Dec. 3357 (BIA 1998). The IJ further observed that attorney Muresan's acknowledged receipt of notice for the March 26, 1997 deportation hearing met the statutory requirements of the act. See INA § 242B(a)(2). Finally, the court addressed, sua sponte, the effect of Mure-san's fraud, noting: "Even assuming ar-guendo that the petitioner had some basis to assert a claim for tolling of the 180 days, more than that period elapsed between actual notice of the entry of the Court's order and the filing of the instant motion." Scorteanu petitioned for review of the IJ's denial before the BIA on April 13, 2001. The BIA returned a dismissal of petitioner's appeal on November 9, 2001. The Board noted that petitioner's motion was filed well beyond the 180 day statutory time limit pursuant to § 242B(c)(3)(A) of the Act. The Board also addressed the IJ's sua sponte consideration of the possi bility of equitable tolling of the 180 day time limit, observing that such equitable relief was unavailable when a party, such as the petitioner, failed to exercise due diligence on his own behalf, filing the recision motion almost a year after actual notice. Scorteanu then perfected this timely appeal. Jurisdiction over this petition is conferred upon this Court by section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a as it existed immediately prior to April 1, 1997, the effective date of the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA"). II. Analysis The Court reviews the denial of a motion to reopen deportation proceedings for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ashki v. INS, 233 F.3d 913, 921 (6th Cir.2000); see also INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Pursuant to section 242B(c)(3) of the Act, the IJ and the BIA are-permitted as a matter of discretion to rescind an in absentia order of deportation under limited circumstances. See Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). An in absentia order of deportation may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with the requirements in section 242B(a)(2) of the Act. 8 U.S.C. § 1252B(c)(3)(B) (1994). Alternatively, an in absentia order may be rescinded upon a motion to reopen filed within 180 days of the date of the deportation order "if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in subsection (f)(2) of this section." § 242B(c)(3)(A). Thus, in seeking recision of an in absentia deportation order, the burden rests on the movant to demonstrate either improper notice or exceptional circumstances. See Giday v. INS, 113 F.3d 230, 233 (D.C.Cir.1997). Scorteanu has, first, averred that section 242B(c)(3)(B) of the Act permitted him to file a motion to reopen the in absentia order of deportation at any time because he failed to receive notice of the hearing. Petitioner has specifically contended that the language of section 242B(c)(3)(B) requires notice of a scheduled deportation hearing to the alien while making notice to the alien's attorney insufficient, because section 242B(c)(3)(B) refers to notice "to the alien," rather than to the alien or the alien's counsel. A brief examination of the applicable statutory language reveals the inadequacy of petitioner's contention. Section 242B (c)(3)(B) of the Act directs that an in absentia, order may be rescinded only — . (B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in-accordance with subsection (a)(2) or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien. 8 U.S.C. § 1252b(c)(3)(B) (1994). The referenced subsection 242B(a)(2) of the Act provides as follows: In deportation proceedings under section 242— (A) written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien's counsel of record, if any), in the order to show cause or otherwise, (B) in the case of any change or postponement in the time and place of such proceedings, written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien's counsel of record, if any) 8 U.S.C. § 1252b(a)(2)(A) & (B) (1994). Petitioner has admitted that attorney Muresan, his then counsel of record, received proper certified notification of the March 26, 1997 hearing. Because § 242B(c)(3)(B) provides for reopening of in absentia proceedings only as a "remedy for improper service," relief under this section is unavailable to Scorteanu. See Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir.2002) (maintaining that § 242B makes clear that "[a]n alien does not have to actually receive notice of a deportation hearing in order for the requirements of due process to be satisfied," as the INS may satisfy notice requirements by mailing notice of the hearing to petitioner's attorney's address of record); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (concluding that notice was adequate where served only upon petitioners' attorney); Arrieta v. INS, 117 F.3d 429, 431 (9th Cir.1997) (finding that notice sent by certified mail to last known address rendered service presumptively effective); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.1992) (concluding that an IJ may send notice of hearing to alien's representative to effectively constitute notice to alien); Men Keng Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir.1982) (explaining that service upon appellant's counsel was effective to constitute notice to appellant). Additionally, Scorteanu's contention that the Board abused its discretion by not directly addressing his interpretation of section 242B(c)(3)(B) is without merit. Relief under section 242B(c)(3)(B) was not available to the petitioner whose then attorney of record had, admittedly, received proper notice. Moreover, the Board need not "list every possible positive and negative factor in its decision." Rodriguez-Rivera v. INS, 993 F.2d 169, 170-71 (8th Cir.1993). As the Fifth Circuit has observed, the Board "has no duty to write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir.1984). See Torres v. INS, No. 93-3617, 28 F.3d 1214, 1994 WL 284540 (6th Cir. June 27, 1994) (unpublished disposition) (concluding that it was sufficient to prove that the Board fully considered the petitioner's claims when the Board explicitly recited that it had reviewed the record and the IJ's decision and adopted the reasoning of the IJ); Najib v. INS, No. 93-3139, 1994 WL 95935 (6th Cir. March 23, 1994) (unpublished disposition) (noting that the Board adequately set forth its reasons for denying relief by examining the IJ's application of the facts to the law, addressing petitioner's arguments on appeal and then reaching its own conclusion). Upon review, the BIA's opinion and the record have provided this court with sufficient basis upon which to review the BIA's decision. Petitioner has, further, asserted that exceptional circumstances warrant reopening the deportation proceedings in light of his claim not to have received notice due to ineffective assistance of counsel. Scorteanu has specifically averred that a motion to reopen an in absentia deportation proceeding may be pursued at any time where ineffective assistance of counsel is shown and, as such, the BIA's dismissal was a violation of due process. Petitioner's claim has little merit. This Circuit has recognized that Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001). The alien must prove that ineffective assistance of counsel resulted in prejudice or denial of fundamental fairness in order to prove a denial of due process. Dokic v. INS, No. 92-3592, 999 F.2d 539, 1993 WL 265166, *3 (6th Cir. July 15, 1993) (unpublished) (citing Aguilera-Enriquez v. INS, 516 F.2d 565, 569 (6th Cir.1975)). Due process requires notice that is "reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Al-Rawahneh v. INS, No. 00-4447, 2002 WL 1021866 (6th Cir. May 17, 2002) (unpublished opinion) (finding no due process violation where aliens failed to have their mail forwarded to new address and thus failed to receive notice of OSC hearing). Unlike the petitioner in Al-Rawahneh, Scorteanu had provided a forwarding address to his attorney, but relied upon him to notify the INS of that new address and to notify Scorteanu of his March 26, 1997 hearing date. Muresan's subsequent misfeasance and fraud amounted to the type of "exceptional circumstances" contemplated by § 242B(c)(3)(A) & (f)(2) of the Act, as material incidents beyond Scorteanu's control. Section 242B(c)(3)(A) of the Act, directs that an in absentia, order may be rescinded . (A) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2)) 8 U.S.C. § 1252b(c)(3)(A) (1994). Section 242B(f)(2), provides: The term 'exceptional circumstances' refers to exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien. 8 U.S.C. § 1252(f)(2) (1994). See also In re Assaad, 23 I. & N. Dec. 553, 558 (BIA Feb. 12, 2003); Matter of Grijalva-Barrera, 21 I & N Dec. 472, 474 (BIA 1996) (finding rescission of an in absentia deportation order under § 242B(e)(3)(A), when petitioner filed to reopen within 180 days of the deportation order due to exceptional circumstances). Both the immigration court and the Board noted that the 180 day time period prescribed in § 242B(c)(3)(A) could be subject to equitable tolling due to Muresan's ineffective assistance of counsel and, thus, suspended from running until Scorteanu had received actual notice. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003) (holding that equitable tolling is available where petitioner's attorney engaged in fraudulent or deceptive acts); see also Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir.2002) (recognizing equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error). Nevertheless, this court need not decide, in the instant case, whether the statute is subject to equitable tolling because, even if this court were to so concede, Scorteanu has failed to prove entitlement to equitable relief. In Jobe v. INS, 238 F.3d 96, 100(1st Cir.2001) (en banc), the First Circuit reviewed the petition of an alien who had failed to make a prima facie showing of entitlement to equitable tolling of § 242B(c)(3)(A)'s time limit. Evidence of Jobe's insufficient diligence disposed the court to dismiss the petition without deciding whether the equitable tolling doctrine would apply to the statutory provision. Id. Similarly, in the instant case, this court need not address whether Muresan's ineffective assistance of counsel warranted equitable tolling because, even after having received actual notice and having retained different counsel, Scorteanu exceeded the statutory time limit by waiting until February 12, 2001 to file his motion to reopen. Petitioner has averred that this lapse of time did not reflect an absence of due diligence, but rather resulted from the difficulty in locating former counsel Muresan and obtaining his affidavit pursuant to the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639, 1988 WL 235454 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir.1988). However, Scorteanu's contention is not persuasive as it represents a misapplication of the procedural requirements detailed in Lozada. There, the BIA stated that when an alien has averred ineffective assistance of counsel, the motion should be supported by 1) an affidavit setting forth "in detail the agreement that was entered into with former counsel with respect to the actions to be taken," as well as any representations made by counsel to the alien; 2) proof that the movant has informed former counsel of the allegations in writing, as well as any response received; and 3) a statement detailing "whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not." Id.; see also Saakian v. INS, 252 F.3d 21, 25 (1st Cir.2001); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999); Huicochea-Gomez v. INS, 237 F.3d at 699. Scorteanu needed only to notify former attorney Muresan of the charge of ineffective assistance of counsel. For his part, Muresan was not required to submit an affidavit in support of Scorteanu's charge. In short, Scorteanu has failed to prove, as he must, that the lapse of time between March 2000 and February of the following year was fostered by an exceptional circumstance beyond his control. Consequently, this court affirms the BIA's dismissal of Scorteanu's petition to reopen proceedings. . The amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L.No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), are not applicable to the instant case. As such, references herein are made to the Immigration and Nationality Act as it existed prior to the enactment of the IIRIRA. The IIRIRA repealed the section under consideration in this case, but provided transitional rules that apply to cases, such as the instant case, where the deportation proceedings commenced prior to April 1,, 1996. The transitional rules provided that the INA applies as codified prior to the passage of the IIRIRA. See IIRIRA § 306(c)(1), 309(a). . In early 1996, Scorteanu had married Doi-na Zieminska and retained attorney Mosabi Hamed to file an 1-130 Immigrant Petition for Alien Relative. At no time did Hamed enter an appearance on behalf of the petitioner in the instant deportation proceedings. . While Scorteanu has averred that he informed Hamed of his pending asylum application and that Hamed had agreed to inquire into the status of petitioner's asylum case, any statements made by Hamed with respect to the pendency of the deportation proceedings are irrelevant to the petitioner's claims of exceptional circumstances and lack of notice where Hamed was not petitioner's counsel of record. . The BIA accepted this time frame in its November 9, 2001 dismissal of petitioner's appeal. . The issue of equitable tolling due to excep-lional circumstances has split the circuits. Compare Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir.1999) (holding that § 242B(c)(3)(A) sets forth a "mandatory and jurisdictional" time bar) with Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999) (holding that § 242B(c)(3)(A)'s time bar is not jurisdictional and thus subject to equitable tolling). See also Damon W. Taaffe, Comment: Tolling the Deadline for Appealing in Absentia Deportation Orders Due to Ineffective Assistance of Counsel, 68 U.Chi. L.Rev. 1065 (2001) (proposing a distinction between attorney misfeasance and nonfeasance, and allowing mis-feasant (or actively misleading) ineffective assistance to constitute an "exceptional circumstance" sufficient to warrant equitably tolling the 180 day appeal deadline).

537 U.S. 1175

C. A. 11th Cir. Certiorari denied.

538 U.S. 930

C. A. 4th Cir. Certiorari denied.

90 Ct. Cl. 685

Income tax; special assessment; discretion of Commissioner. Petition dismissed May 1, 1939; plaintiff's motion for new trial overruled October 2, 1939. Petition for writ of certiorari denied by the Supreme Court April 1, 1940.

288 U.S. 607

-Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit, and motion for leave to proceed further in forma pauperis, denied.

456 F.3d 1342

BLACK, Circuit Judge: Nathan Deshawn Faust appeals his conviction and 210-month sentence for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He argues: (1) there is insufficient evidence to support his conviction; (2) the district court erred in admitting evidence under Federal Rule of Evidence 404(b) because the Government failed to provide adequate notice of its intent to introduce such evidence; and (3) the district court violated his Sixth Amendment right to a jury trial by enhancing his sentence based on conduct for which he was acquitted. For the reasons set forth more fully below, we affirm. I. BACKGROUND On June 12, 2003, police responded to a 911 call at a residence in West Palm Beach, Florida. Joy Wright opened the door but insisted she had not called 911. She did not allow the officers inside. Shortly thereafter, Faust appeared at the door, and Wright identified him as her husband who lived there. After leaving, the officers informed the narcotics unit of suspicious behavior at the residence. Narcotics officers returned to the residence later that night. Soon after arriving, they witnessed Faust leaving the residence in a black rental car and observed a red Camaro parked outside. They then searched the trash at the curb outside the residence. This "trash pull" uncovered 17 aluminum baking pans, seven or eight of which contained scoring marks and white powder residue, and a small plastic bag also containing white powder residue. A trash pull conducted a few days later uncovered additional plastic bags with the same residue. The residue on the items tested positive for cocaine based on an initial field test. Police obtained a search warrant and searched the residence on June 25, 2003. Wright was not at home, but four others, including Faust, were present. The officers found a bag containing 31.6 grams of cocaine on top of a kitchen cabinet next to an unopened letter addressed to Faust, and a baking pan bearing scoring marks similar to those on the pans found in the first trash pull. Throughout the house, they also found 94 grams of methylenedi-oxymethamphetamine (ecstasy), four firearms and ammunition, $2700 in cash, and what was believed to be incense, a known cutting agent. A digital scale that Faust later admitted was his, men's clothing and cologne, and family photographs including Faust were also found in the house. Following Faust's arrest, $745 in small bills was found in his pants pocket. Faust was charged in a four-count su-perceding indictment. At trial, the Government presented testimony from the landlord of the residence, who said both Wright and Faust originally signed the lease, but only Wright signed the renewal agreement. He also testified that Faust owned a red Camaro. The Government then called a fingerprint expert who testified that one of the baking pans found in the first trash pull contained Faust's fingerprint. Another expert testified that the items found in the residence, as well as the scoring marks on the baking pans, were .consistent with the cooking, cutting, and dealing of crack cocaine. The same expert testified that the $2700 found in the residence was banded in "dealer folds" and that drug dealers predominately keep property in the name of other individuals to isolate themselves from their drug dealing activities. Finally, the Government offered testimony from Dwayne Cooley under Federal Rule of Evidence 404(b). Cooley said he had a history of purchasing crack cocaine from Faust and had seen Faust cooking crack cocaine. In defense, Faust argued he did not live at the residence and had no knowledge of the drugs or guns found there. The jury convicted Faust of possession with intent to distribute cocaine, but acquitted him on the remaining three counts. The pre-sentence investigation report (PSI) calculated Faust's base offense level at 20 pursuant to U.S.S.G. § 2Dl.l(a)(3) and (c)(10) due to his responsibility for 31.6 grams of cocaine and 94 grams of ecstasy. Two levels were added under § 2Dl.l(b)(l) because he possessed a dangerous weapon. However, because Faust was a career offender under § 4Bl.l(a) and the statutory maximum for his convicted offense was 30 years, his offense level was set at 34 pursuant to § 4Bl.l(b). With a criminal history category of VI, his Guideline range became 262 to 327 months' imprisonment. Faust was sentenced after the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). At sentencing, he renewed his objections to the PSI, arguing his sentence should not be enhanced based on possession of ecstasy and weapons because he was acquitted of that conduct. The district court overruled the objection because it had considered the Guidelines as advisory and had based its calculations on a preponderance of the evidence. The district court, however, granted Faust's motion for a downward departure because his criminal history category seriously over-represented his criminal history. With a new criminal history category of TV, Faust's Guideline range became 210 to 262 months' imprisonment. The court considered the factors in 18 U.S.C. § 3553(a), and sentenced Faust to 210 months' imprisonment and 6 years' supervised release. This appeal followed. II. DISCUSSION A. Sufficiency of the Evidence Faust first argues there is insufficient evidence on which to sustain his conviction because the Government cannot show he possessed the cocaine found at the residence. We review sufficiency of the evidence claims de novo. United States v. McDowell, 250 F.3d 1354, 1361 (11th Cir.2001). To determine if evidence is sufficient to support a conviction, we must view the evidence in the light most favorable to the Government and decide whether a reasonable juror could have reached a conclusion of guilt beyond a reasonable doubt. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir.1997). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Harris, 20 F.3d 445, 453 (11th Cir.1994). To support a conviction under 21 U.S.C. § 841(a)(1), the Government must establish the defendant "(1) knowingly (2) possessed cocaine (3) with intent to distribute it." Id. Possession may be either actual or constructive. Id. "The government may prove constructive possession if it shows a defendant maintained dominion or control over the drugs or over the premises where the drugs are located." Id. Constructive possession can be established by either direct or circumstantial evidence and by inferences arising from the surrounding circumstances. See United States v. Pruitt, 763 F.2d 1256, 1264 (11th Cir.1985). The Government presented sufficient evidence at trial to support the conclusion that Faust constructively possessed the cocaine found at the residence. In the first trash pull, police uncovered 17 baking pans, many containing cocaine residue and scoring marks consistent with the cutting of crack cocaine. Faust was seen leaving the residence on the night of the trash pull, and his fingerprint was found on one of the baking pans that contained cocaine residue. Moreover, when executing the search warrant, police discovered an unopened letter addressed to Faust next to the bag of cocaine and an additional baking pan bearing scoring marks. Throughout the house, the officers also found $2700 in cash, a digital scale, and incense, a known cutting agent. In addition, $745 in small bills was found on Faust's person. This evidence, bolstered by Dwayne Cooley's testimony regarding his past drug dealings with Faust, could, and did, convince a reasonable juror beyond a reasonable doubt that Faust participated in the production of crack cocaine and possessed the cocaine found at the residence for that purpose. Furthermore, although Faust denied living at the residence, the Government presented sufficient evidence for the jury to infer that he did in fact live there or, at the very least, "maintained dominion or control . over the premises." See id. When police responded to the 911 call and Faust appeared at the door, Wright identified him as her husband who lived there. During the search, police discovered letters addressed to Faust, men's clothing and cologne, family photographs that included Faust, and a digital scale, which Faust admitted was his. Faust also signed the original lease and, although he did not sign the renewal agreement, an expert testified that such behavior was consistent with the actions of drug dealers. Finally, Faust testified that he could gain access to the residence at will; indeed, Wright was not at home on the night of the search, and Faust had let himself in. Based on this evidence, a reasonable juror could have concluded beyond a reasonable doubt that Faust maintained dominion or control over the residence. Accordingly, sufficient evidence supports Faust's conviction on a constructive possession theory. B. Rule JpOb(b) Evidence Faust next argues the district court erred in admitting Dwayne Cooley's testimony. He does not dispute the content of Cooley's testimony, but instead contends the Government failed to provide reasonable notice of its intent to introduce his testimony as required by Federal Rule of Evidence 404(b). The record directly contradicts this assertion. Under Rule 404(b), evidence of pri- or acts is not admissible to prove the defendant's character, but is admissible for other limited purposes "provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial . of the general nature of any such evidence it intends to introduce at trial." On July 30, 2002, in its first response to the standing discovery order, the Government disclosed its intent to offer 404(b) evidence at trial. On January 6, 2004, more than seven months prior to trial, the Government submitted a supplemental response indicating "pursuant to [Federal Rule of Evidence] 404(b) it may offer the testimony of Dwayne Cooley regarding his narcotic dealings with defendant." The supplemental response went on to detail the content of Cooley's anticipated testimony. The Government's notice, given more than seven months before trial, was certainly sufficient to satisfy Rule 404(b)'s reasonable notice requirement. C. Sixth Amendment Challenge Finally, Faust argues the district court erred in enhancing his base offense level due to its finding that he possessed ecstasy and firearms, because the jury acquitted him of that conduct. Faust contends that even when the Sentencing Guidelines are applied in an advisory manner, the Sixth Amendment right to a jury trial prohibits courts from considering relevant conduct for which a defendant was acquitted when making sentencing calculations. This Court has already rejected that argument. Under our long-standing precedent, "[rjelevant conduct of which a defendant was acquitted nonetheless may be taken into account in sentencing for the offense of conviction, as long as the government proves the acquitted conduct relied upon by a preponderance of the evidence." United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997); see also United States v. Rivera-Lopez, 928 F.2d 372, 372-73 (11th Cir.1991). As the Supreme Court explained in United States v. Watts, 519 U.S. 148, 154, 117 S.Ct. 633, 636, 136 L.Ed.2d 554 (1997), "sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction." "[Consideration of information about the defendant's character and conduct at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted." Id. at 155, 117 S.Ct. at 636 (quotation omitted). Faust recognizes this precedent, but argues the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), casts doubt on it. In United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005), however, we held nothing in Booker prohibits courts from considering relevant acquitted conduct when the Sentencing Guidelines are applied as advisory. As we explained: Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury verdict. Thus, nothing in Booker erodes our binding precedent. Booker suggests that sentencing judges can continue to consider relevant acquitted conduct when applying the Guidelines in an advisory manner, "for when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Id. (quoting Booker, 543 U.S. at 233, 125 S.Ct. at 750); see also United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.2005) (explaining "all nine [justices] agreed that the use of extra-verdict enhancements in an advisory guidelines system is not unconstitutional."). Indeed, in Justice Stevens' majority opinion in Booker, he stated "[n]one of our prior cases is inconsistent with today's decision" and specifically discussed Watts, among other cases. Booker, 543 U.S. at 240-41, 125 S.Ct. at 754-55. Thus, Watts ' holding — '"that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence conduct," Watts, 519 U.S. at 156, 117 S.Ct. at 638 — survives Booker. We also note 18 U.S.C. § 3661, on which Watts relied, remains intact post -Booker. Under § 3661, "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." Because the Supreme Court in Booker excised only two provisions of the Sentencing Act, 18 U.S.C. § 3553(b)(1) and § 3742(e), see Booker, 543 U.S. at 259, 125 S.Ct. at 764, it follows that courts may still consider relevant facts concerning a defendant's "background, character, and conduct" when making sentencing calculations, even if those facts relate to acquitted conduct. See Magallanez, 408 F.3d at 684-85. Accordingly, under an advisory Guidelines scheme, courts can continue to consider relevant acquitted conduct so long as the facts underlying the conduct are proved by a preponderance of the evidence and the sentence imposed does not exceed the maximum sentence authorized by the jury verdict. Here, the district judge clearly applied the Guidelines as advisory, stating during the sentencing hearing, "I absolutely understand that the Sentencing Guidelines are no longer mandatory." The judge then found the facts underlying the acquitted conduct by a preponderance of the evidence. As for the ecstasy charge, the evidence showed that several bags of ecstasy, totaling 94 grams, were recovered from the living room on the night of the search. The judge found "the presence of [ecstasy] certainly has been established by a preponderance of the evidence, and its relationship to the Defendant as being involved in the possession of those drugs has been established by a preponderance of the evidence." As for the weapons charge, four firearms were recovered, one next to a bag of ecstasy and three elsewhere in the residence. The judge found by a preponderance of the evidence that either Faust or a co-conspirator possessed the firearms. Based on these findings, the judge enhanced Faust's offense level accordingly. Finally, Faust's ultimate sentence, 210 months' imprisonment, was well below the 30-year maximum sentence authorized by the jury verdict of conviction on the cocaine possession charge. The district court thus did not err in considering the ecstasy and weapons charges as relevant conduct when calculating Faust's sentence. III. CONCLUSION We affirm Faust's conviction because it is supported by sufficient evidence and because the Government provided reasonable notice of its intent to introduce Cooley's testimony. We also affirm Faust's sentence because the district court did not err in considering relevant acquitted conduct, established by a preponderance of the evidence, when calculating his sentence. AFFIRMED. . Specifically, Faust was charged with: (1) possession with the intent to distribute ecstasy, in violation of 21 U.S.C. § 841(a)(1); (2) possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm and/or ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 924(e); and (4) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(A)(i) and (ii). . Federal Rule of Evidence 404(b) states, in pertinent part: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . intent . " The Government con tends it introduced Cooley's testimony regarding his past drug dealings with Faust to prove Faust intended to distribute the cocaine found in the residence. . This statutory maximum was based on a violation of 21 U.S.C. § 841(b)(1)(C), and the Government having filed a notice of enhancement pursuant to 21 U.S.C. § 851. . Faust also argues the district court erred in determining the term "statutory maximum" in U.S.S.G. § 4Bl.l(b)(B) refers to the number of years set forth in the substantive statute rather than the maximum sentence permitted by the Guidelines prior to the application of any enhancements. This argument is without merit. It is beyond question that "statutory maximum" refers to the maximum sentence a defendant can receive, according to the substantive statute, based on his offense of conviction. . Every other circuit to consider this issue has reached the same conclusion. See United States v. High Elk, 442 F.3d 622, 626 (8th Cir.2006); United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir.2005); United States v. Price, 418 F.3d 771, 787-88 (7th Cir.2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.2005).

354 U.S. 912

Appellate Division of the Supreme Court of New York, Fourth Judicial Department. Certiorari denied.

526 U.S. 1025

C. A. 8th Cir. Certiorari denied.

454 U.S. 960

C. A. 6th Cir. [Certiorari granted, 451 U. S. 906.] Motion of Rosenthal & Co. for leave to file a brief as amicus curiae denied.

11 Cust. Ct. 44

Ekwall, Judge: A shipment of rugs from Belgium was entered for consumption at the port of Los Angeles on February 4, 1939, the entered value being given as Belgian francs 55,111.80. Subse quently, to wit, on February 16, 1939, an amended entry was filed giving the value as Belgian francs 60,134. As neither the invoice nor the goods had come under the observation of the appraiser for the purpose of appraisement the amendment was allowed and the appraiser proceeded with his appraisement, returning the invoice at the value as shown on the amended entry, and the collector in due time liquidated the entry on the basis of such value. Within the statutory time a protest was filed, the pertinent portion of which reads as follows: We hereby protest your liquidation in view of the fact that a Duress Certificate was attached to the Invoice with the entry and that liquidation should have been suspended pending decision on appeal in this matter. When the case was called for hearing on October 9, 1940, an attorney appeared for the importer and after some discussion, participated in by the judge presiding at the hearing and counsel for both sides, the following amendment to the protest was allowed: We further claim that the liquidation was illegal, being based on an illegal appraisement. We also claim that the merchandise is properly dutiable at oniy 20% under Par. 921 of the Tariff Act of 1930 and the Belgian Trade Agreement (T. D. 47600), on such value at which the merchandise is finally appraised. The case comes before us without any testimony and without any official report from the collector. Apparently the collector transmitted the protest and entry and accompanying papers without even a covering letter. We shall, therefore, have to form our judgment from such facts as we can properly deduce from the entry papers and invoice, the so-called duress certificate, and certain concessions made by the Government attorney when the case was called for hearing. We find among the papers a document that is in form such a duress certificate as the law requires so far as the matter therein contained is concerned, but it is obviously only a carbon copy, with the original not accounted for, and it is not signed. It is on a piece of plain white paper, not a letterhead. The Government attorney has conceded that this alleged certificate was attached to the amended entry when the latter was filed and on the strength of this concession plaintiff's attorney argues that because the entry was signed there was no need for the certificate to be signed. We cannot agree with this position. Every entry is required to be signed and according to plaintiff's position here no duress certificate need ever be signed. But a certificate — of whatever character — is null and void if it is not signed by the person making it. The signature is of the essence of the document. All the definitions of the term, both lay and legal, confirm this statement. For example, the Standard Dictionary gives this definition: certificate . 2. Law, A writing so signed and authenticated as to be legal evidence . It is true as contended by plaintiff's attorney that the statute does not specifically require that the certificate be signed, but this is far from being persuasive of an intent on the part of the lawmakers to dispense with a signature. Section 514 of the Tariff Act of 1930 does not specifically require that a protest be signed, but in the case of Allison v. United States, 11 Ct. Cust. Appls. 297, T. D. 39126, a protest not signed was held to be a nullity. Section 501 of the same law does hot specifically require that appeals to reappraisement be signed but in United States v. General Aniline Works, 58 Treas. Dec. 751, T. D. 44421, an appeal to reappraisement was held invalid because the person taking the appeal signed it with his initials instead of his full name. We hold as matter of law that the so-called duress certificate before us, which is the one that is discussed by plaintiff's attorney in his brief, is void and of no effect. It follows that the action of the importer in entering at the value shown in the amended entry was entirely voluntary on its part and that the action of the collector in liquidating upon the basis of such value was legal and proper in all respects. It is evident from the foregoing that the complaint of importer's attorney that the collector violated the law in not sending the importer a notice of appraisement is quite without merit. This matter of giving notice of appraisement is governed by section 501 of the Tariff Act of 1930 which directs that— The collector shall give written notice of appraisement to the consignee, his agent, or his attorney, if (1) the appraised value is higher than the entered value, or (2) a change in the classification of the merchandise results from the appraiser's determination of value. In the instant case the appraised value was not higher than the entered value and there was no change in the classification of the merchandise resultant from the appraiser's action. The conclusion we have reached herein makes it unnecessary to discuss the various other arguments in plaintiff's brief particularly as they embody statements of facts and happenings that are wholly unsupported by evidence. As we have already stated the case is before us without any testimony in support of the allegations in the brief. This observation applies also to the classification claim in the amendment to the protest. Plaintiff's claims are overruled on all grounds and the decision of the collector will stand. Judgment will be rendered accordingly..

439 U.S. 894

C. A. 5th Cir. Certiorari denied.

750 F.2d 81

Opinion for the Court filed by Circuit Judge WILKEY. WILKEY, Circuit Judge: The Air Line Pilots Association ("ALPA") sued the Civil Aeronautics Board ("CAB" or "the Board") in federal district court, complaining of unreasonably delayed agency action and bias. The district court found that it had jurisdiction over the matter, and then dismissed ALPA's complaint for failure to state a claim for which relief may be granted. We find the district court in error as to jurisdiction, and hold that as to petitions to compel unreasonably delayed agency action, and as to claims of bias in the agency, exclusive jurisdiction lies in the Court of Appeals. The basis of our jurisdictional holding is explained in the companion case of Telecommunications Research and Action Center v. FCC ("TRAC"). Having found exclusive jurisdiction in the Court of Appeals, we also find that appellants are entitled to some relief on the merits. I. Background By enacting the Air Line Deregulation Act of 1978 ("ADA"), Congress subjected the air line industry to the forces of the marketplace. Congress anticipated that deregulation would cause some injury to air line employees, and sought to provide limited assistance. Section 43 of the ADA requires CAB to determine whether complaining employees have lost their jobs because of a "qualifying dislocation," which the Act defines as a bankruptcy or major contraction in an employer's work force, the "major cause of which is the change in the regulatory structure provided by the Act." The Board began receiving applications for these determinations (that an applicant has lost his job primarily because of deregulation), called "section 43 determinations," as early as January 1979. By October 1983, the Board still had not taken direct action on any of these applications. No hearings had been held. In the meantime, Braniff International Airways had ceased operations and declared bankruptcy in May 1982. During the summer of 1982, CAB's Chairman MacKinnon made several statements to the effect that Braniff's bankruptcy was not caused by deregulation. ALPA alleges that these statements conclusively demonstrate prejudgment of the critical issue in a section 43 determination — causation. ALPA's complaint filed with the district court presents two major issues: (1) whether CAB has unreasonably delayed acting on the section 43 determinations, and (2) whether CAB Chairman MacKinnon, as well as other Board members through him, have shown prejudgment of the issue by MacKinnon's statements concerning the cause of Braniff's bankruptcy. This case, together with its companion case, present a third issue: whether jurisdiction over such cases, which seek relief that may affect the Court of Appeals' future statutory power of review of final agency action, properly lies in the district court, concurrently in the district court and the Court of Appeals, or exclusively in the Court of Appeals. We will deal with each of these issues, turning first to the jurisdictional issue. II. Analysis A. Jurisdiction Following the district court's dismissal, ALPA filed notice of appeal and moved for expeditious consideration and summary reversal. This Court denied the motion for summary reversal and granted the motion for expeditious consideration. Because the cases presented a significant jurisdictional question left open by our prior case law, we specifically requested that the parties in this case and in TRAC address the jurisdictional issue. We now hold that jurisdiction over cases which seek relief that may affect our future statutory power of review over final agency action lies exclusively in the Court of Appeals. We leave full explanation of the principles governing our jurisdictional decision to our opinion in TRAC. We note, however, that the basis of our holding is the exclusive jurisdiction given to the Court of Appeals over review of final agency action. In the case of the Civil Aeronautics Board, this exclusive jurisdiction is provided by Section 1006 of the Federal Aviation Act. This grant of exclusive jurisdiction over final action must be read in conjunction with the All Writs Act, which provides that "the Supreme Court and all courts established by an act of Congress may issue all writs necessary or appropriate in aid of their prospective jurisdiction____" Read together with the relevant case law, these statutes form the foundation of the principle of exclusive Court of Appeals' jurisdiction over cases which affect its future jurisdiction over final agency action. Those principles apply just as squarely to a claim of bias on mandamus (an issue only in this case) as they do to a claim of unreasonable delay (an issue common to this case and TRAC). The bias claim has equal power to affect our future jurisdiction over final agency action. In both instances, the Court of Appeals is acting in aid of its future jurisdiction, and has exclusive jurisdiction. There is one important difference between this ease and TRAC. In this case, ALPA originally filed its complaint in the district court, and appealed to this Court after dismissal by the district court. Under a very technical analysis, if (as we have held) the district court had no jurisdiction, then this Court could not obtain jurisdiction on appeal. However, it will not be necessary to dismiss this suit for lack of jurisdiction. Congress has provided for just such a turn of events with a statute allowing transfer to cure lack of jurisdiction. The statute states that when a civil action is filed in a court that lacks jurisdiction (including cases on appeal), that court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. We have already acknowledged the urgency of this case by granting ALPA's motion for expeditious consideration. Even the district court's dismissal of this case was "without prejudice to plaintiff's rights to invoke the jurisdiction of the Court of Appeals." No useful purpose would be served by forcing ALPA to start over. In addition, we recognize that the precedent in this circuit may have implied that the district court had concurrent jurisdiction over these claims. Therefore, we find it "in the interest of justice" to proceed on the merits of this ease as though it originally had been brought in this Court. B. Unreasonable Delay 1. Interlocutory Review It should be noted that normally the most efficient means of reviewing agency action is to wait until the relevant agency proceedings have concluded. This is related to the general judicial doctrine of ripeness, as well as notions of effective agency administration. In Abbott Laboratories, Inc. v. Gardner the Supreme Court explained that the basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. As this Court explained in Association of Nat'l Advertisers, Inc. v. FTC withholding review until after final agency action "permits an administrative agency to develop a factual record, to apply its expertise to that record, and to avoid piecemeal appeals." Despite this general policy, claims of unreasonable delay fall within a narrow class of interlocutory appeals from agency action over which we appropriately should exercise our jurisdiction. By definition, a claim of unreasonable delay cannot await final agency action before judicial review, since it is the very lack of agency action which gives rise to the complaint. It is also obvious that the benefits of agency expertise and creation of a record will not be realized if the agency never takes action. In addition, judicial review of claims of unreasonable delay do not prematurely inject the courts into the agency's consideration of the merits of the issue before it. Finally, agencies operate under a mandate to decide matters in a reasonable time, and Congress has instructed statutory review courts to compel agency action which has been unreasonably delayed. 2. Analysis of the Delay CAB first began receiving applications for section 43 benefits in January 1979. For several years, no direct action was taken on these applications. The Board did set out preliminary orders which interpreted section 43 and set guidelines for the Administrative Law Judges. However, as of October 1983, the time of the filing of ALPA's complaint, no hearings had been held on any of the applications. In May 1984 CAB scheduled evidentiary hearings, over five years after it first received applications. As of the time of oral arguments in this case, one of those hearings had been completed, with no disposition yet by the Board. This Court has decided several cases involving claims of unreasonable delay. None of these eases contains a generic test for determining whether agency action has been unreasonably delayed. That is a result of the necessary flexibility of the core concept — "reasonableness." In most areas of the law, the question of reasonableness is closely tied to the particular facts of the case. The same is true of any analysis of a claim of unreasonable delay. Each case must be analyzed according to its own unique circumstances. Some agency action will have a timetable mandated by statute. Other action will take place under difficult circumstances for the agency. For example, in this ease the question of reasonableness must be placed in the context of CAB's eminent demise on 31 December 1984, with the consequence that CAB's workforce has been steadily diminishing. Each case will present its own slightly different set of factors to consider. However, a five year delay in adjudicating claims for a form of unemployment assistance payments would be difficult under any set of circumstances. As we have explained elsewhere, "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake." In MCI Telecommunications Corp. v. FCC, we explained that "many of the same considerations that impelled judicial protection of the right to a 'speedy trial' in criminal cases or implementation of civil decrees with all deliberate speed are not inapposite in agency deliberations." In the MCI case, involving review of tariff revisions under 47 U.S.C. § 204, we found a four year delay to be unreasonable. The task before the agency in this case is no more complex than the task the FCC faced in MCI. Neither do any other of the relevant considerations in this case adequately excuse the agency. Viewing the five year delay in this case against the backdrop of all the relevant factual circumstances, we find that CAB has unreasonably delayed acting on the applications for section 43 determination. Consistent with this holding, we have previously requested CAB to furnish us with the dates by which it intends to reach a decision on those applications received prior to 1 September 1983. CAB has responded, informing the Court that it "will be unable to reach a final decision with respect to any of the pending applications before the Board goes out of existence on December 31, 1984." It appears that even in the one hearing which has been completed, the administrative law judge will not reach his decision in time for CAB to act. All other applications have yet to pass through the hearing process before an Administrative Law Judge. CAB estimates that the time required for even an expedited hearing process would be several months. In addition, section 43 of the Air Line Deregulation Act has recently been declared unconstitutional by the District Court for the District of Columbia because of the presence of a legislative veto provision. Several parties have proposed stays of their proceedings until the constitutionality of section 43 is resolved. The Board has granted some of those motions and is considering staying all such proceedings. Given the unique circumstances of termination of the agency, together with the stays related to the legislative veto issue, this Court will not follow up its finding of unreasonable delay with any further order that CAB act before 31 December 1984. That would be the judicial equivalent of spurring a dead horse, or at least a dying one. Rather than require a specific date of disposition, this Court will retain jurisdiction over this case, and order CAB to give an accounting of its progress on the section 43 determinations every 30 days, beginning 30 days from the issuance of this opinion, through 31 December 1984. On 1 January 1985 CAB will go out of existence, and its authority under section 43 will be transferred to the Department of Transportation. However, we see no reason why that should return us to the days of Snyder v. Buck. Rule 25(d) of the Federal Rules of Civil Procedure provides for the automatic substitution of public officers upon their death or separation from office. In ALPA's original complaint in federal district court, ALPA sued the Civil Aeronautics Board and the individual members by name. According to the terms of Rule 25(d), when a public officer "ceases to hold office" during the pendency of an action, "the action does not abate and his successor is automatically substituted as a party." In this case the successors will be the designated officials of the Department of Transportation. At this point in time, it is not possible to state with certainty who those officials will be in January of next year. That does not alter the fact that this substitution will occur automatically, by force of law. ALPA may make a motion for an order of substitution at that time, designating the proper officials. We stress once again that irrespective of any formal order, this substitution is automatic, with no lapse in jurisdiction. Since the Rule makes substitution automatic, it does away with the former Rule's requirement of a showing of substantial need for continuing and maintaining the action. As the Advisory Committee Note to the 1963 amendment says, "where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution . to take . appropriate steps to avert a judgment or decree." The Department of Transportation will re ceive these cases under a holding that CAB, the predecessor-defendant, has unreasonably delayed agency action. We will expect that, following automatic substitution as a respondent on 1 January 1985, the Department of Transportation be prepared to inform this Court of the manner in which it intends to expedite resolution of these claims. C. The Claim of Bias As we have previously noted, the principles supporting exclusive jurisdiction in the Court of Appeals over claims of unreasonable delay equally support exclusive jurisdiction over an interlocutory claim of bias. Such claims come under the rubric of our general holding in TRAC that this Court has exclusive jurisdiction over suits seeking relief which might affect the Court of Appeals' future statutory power of review. In the present case the crux of the bias claim is a series of statements made by Chairman MacKinnon in May of 1982 concerning the cause of Braniff International Airways' bankruptcy.' ALPA also has alleged that by virtue of Chairman MacKinnon's office, he has introduced bias into the minds of the other Board members. The usual presumption in favor of withholding judicial review until after final agency action applies with even greater force in the context of a bias claim than it does with a claim of unreasonable delay. Unlike unreasonable delay, bias does not pose the threat of totally defeating the Court of Appeals' power of review.. Also, claims of bias do not have a congressional mandate analogous to 5 U.S.C. § 706, instructing courts to compel agency action unreasonably delayed. Therefore, the arguments for deferring review merit increased attention. As this Court has previously explained: The administrative proceedings cannot be stopped to allow for excursions in the courts with prolonged evidentiary hearings; the time for that in a proper case is when an aggrieved litigant seeks judicial review of agency action having preserved the point of claimed disqualification in the administrative hearing _ To stay the administrative processes while a court was engaged in an extended inquiry into the claimed disqualification of members of the administrative body could lead to a breakdown in the administrative process which has long been criticized for its slow pace. In the present case a judicial probe into the bias question would only further delay the section 43 proceedings. Therefore, although we recognize our jurisdiction over interlocutory claims of bias, we will take no action on the merits of the bias claim at this time. ALPA also argues that since the Department of Transportation was a party in pending section 43 cases before the Board, and took a position against the employee actions, that therefore the Department of Transportation is also biased. However, the litigating position of some members of the Department of Transportation does not conclusively establish bias. We cannot say that the same people who took a litigating position will be the ones adjudicating these section 43 determinations next year. It is a normal part of agency operations to have some members of an agency litigating cases and other members adjudicating them. Bias in the Department of Transportation thus remains an issue to be brought and argued later, if at all. III. Conclusion We find that CAB has unreasonably delayed agency action on section 43 determinations. Accordingly, we order that the Court's mandate shall issue immediately, and that CAB shall report to this Court on its progress in these eases every 30 days, beginning 30 days from the issuance of this opinion. In addition, the Department of Transportation will automatically be substituted as a respondent in this case on 1 January 1985. We will review any complaint of bias after final and reviewable action by either of the agencies involved. So Ordered. . Joint Appendix at 3-14. . 750 F.2d 70 (D.C.Cir. 1984). . Pub.L. No. 95-504, 92 Stat. 1705 (1978). . 49 U.S.C. § 1552 (1982). . id at (a)(1), (h), (i). . Brief for Appellees at 29, Joint Appendix at 95. . Brief for Appellants at 10-16. . Order No. 84-1035 (D.C.Cir. 12 June 1984). . Telecommunications Research & Action Center v. FCC, Nos. 84-1035 and 84-5077, slip op. at 7-17 (D.C.Cir. 24 Oct. 1984). . 49 U.S.C. § 1486(f) (1982). . 28 U.S.C. § 1651(a) (1982). . 28 U.S.C. § 1631 (1982). . Id. . Joint Appendix at 14. . 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 148-49, 87 S.Ct. at 1515. . 627 F.2d 1151 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). . Id. at 1156 (citing McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). . 5 U.S.C. § 555(b) (1982). . 5 U.S.C. § 706(a) (1982); see Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n. 14, 100 S.Ct. 1095, 1108 n. 14, 63 L.Ed.2d 329 (1980). . Brief for Appellants at 6. . Brief for Appellees at 5-6, 25. . Brief for Appellants at 27, Brief for Appellees at 9. . Transcript of Oral Argument at 27. . PCHRG v. FDA, 740 F.2d 21 (D.C.Cir.1984); PCHRG v. Auchter, 702 F.2d 1150 (D.C.Cir.1983); PEPCO v. ICC, 702 F.2d 1026, supp. op. 702 F.2d 1026 (D.C.Cir.1983); MCI Telecommunications Corp. v. FCC, 627 F.2d 322 (D.C.Cir.1980); Nader v. FCC, 520 F.2d 182 (D.C.Cir.1975). . See, e.g., W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 32 (5th ed. 1984). . See, e.g., 49 U.S.C. § 1371(c) (1982) (route and certificate applications must be set for hearing, dismissed, or considered for simplified proceedings within 90 days). . Transcript of Oral Argument at 26. . TRAC, Nos. 84-1035 and 84-5077, slip op. at 20. . 627 F.2d 322 at 340-41 (D.C.Cir.1980). . 627 F.2d at 324-25. . Letter to the Court from counsel for CAB, filed 15 October 1984. . Alaska Air Lines, Inc. v. Donovan, 594 F.Supp. 92 (D.D.C.1984). That decision is now on appeal before this Court. . 49 U.S.C. § 1552(i) (1982). . 340 U.S. 15, 71 S.Ct. 93, 95 L.Ed. 15 (1950). . Fed.R.Civ.P. 25(d), 28 U.S.C. . Id. The fact that the substitution of parties in this case also involves a substitution of one federal agency for another does not affect the applicability of Rule 25(d). Although the Rule speaks in terms of substituting one officer for another, the reasoning and purpose of the Rule apply a fortiori to the substitution of federal agencies. Both CAB and the Department of Transportation are subject to judicial review in this Court. See 49 U.S.C. § 1486(f) (1982) (CAB); 49 U.S.C. § 1655(h) (1982) (DOT). Even in the constitutionally more sensitive area of suits against state agencies, courts have held that when relevant functions have been transferred from one office to another, officials who now have the responsibility may be substituted for those who formerly had it. See, e.g., Wright v. County School Bd., 309 F.Supp. 671, 677 (E.D. Va.1970), rev'd on other grounds sub nom. Wright v. Council of Emporia, 442 F.2d 570 (4th Cir.1971); rev'd 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Wright involved the substitution of a newly created city school district for an existing county school district. The Supreme Court accepted the substitution, 407 U.S. at 458 n. 10, 92 S.Ct. at 2201 n. 10. This Court's experience with the demise of federal agencies has been very limited. However, nothing in the Rule or in the statutes allowing judicial review over these two federal agencies dispels the logical conclusion that, just as one officer can be substituted by the successor to his authority, so can one federal agency be substituted by another federal agency taking over its functions during the pendency of a case. Of course, very different principles would apply in an action involving state officers and their agencies, particularly those principles embodied in the eleventh amendment. . 7A C. Wright & A. Miller, Federal Practice and Procedure § 1960 (1972). . See supra p. 84. . Joint Appendix at 23-25, Complaint of Air Line Pilots Ass'n, ¶ 41-51. . SEC v. R.A. Holman & Co., 323 F.2d 284, 287 (D.C.Cir.), cert. denied, 375 U.S. 943, 84 S.Ct. 350, 11 L.Ed.2d 274 (1963); see also Touche Ross & Co. v. SEC, 609 F.2d 570 (2d Cir.1979). . Brief for Appellants at 22-23.

3 Cust. Ct. 385

Opinion by Keefe, J. On the authority of Abstract 40880 the protests were sustained.

540 U.S. 1212

C. A. 5th Cir. Certiorari denied.

472 U.S. 424

Justice O'Connor delivered the opinion of the Court. Last Term, in Flanagan v. United States, 465 U. S. 259 (1984), the Court unanimously held that pretrial orders disqualifying counsel in criminal cases are not subject to im mediate appeal under 28 U. S. C. § 1291. In this case, the Court of Appeals for the District of Columbia Circuit held that § 1291 confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. 237 U. S. App. D. C. 333, 737 F. 2d 1038 (1984). Because we conclude that orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal, we reverse. I Respondent Anne Roller (hereafter respondent) was born without normal arms or legs in a District of Columbia hospital in 1979. She filed suit in the United States District Court for the District of Columbia, alleging that petitioner Richardson-Merrell, Inc., is liable for her birth defects. The complaint alleged that respondent's mother, Cynthia Roller, had taken the antinausea drug Bendectin during the early stages of her pregnancy, and that the drug had caused Anne Roller's injuries. Petitioner is the manufacturer of Bendectin. Respondent was initially represented by Cohen & Rokus, a Miami law firm, and by local counsel in Washington. As discovery progressed into 1981, however, a Los Angeles law firm, Butler, Jefferson, Dan & Allis, took the lead in trial preparation. James G. Butler entered an appearance pro hac vice for respondent on January 26, 1981; his partner Nicholas Allis was admitted pro hac vice on October 19,1982. As the case neared trial in early 1983, respondent's counsel of record included at least eight lawyers from the Cohen firm, the Butler firm, and two Washington firms. On December 22,1982, Nicholas Allis' secretary, Rrystyna Janowski, twice called the offices of Davis, Polk & Wardwell, Richardson-Merrell's attorneys. Janowski left messages indicating that Roller's suit was fraudulent and that Cynthia Roller had not taken Bendectin during the crucial early weeks of her pregnancy. App. 19-20. Janowski subsequently regretted her actions, and on December 26 she told a paralegal at her firm that investigators for Richardson-Merrell had been attempting to persuade her to sign a statement indicating that Roller's case was fraudulent. The next day, Allis twice went to see Janowski, first at a hospital where the secretary was visiting her child, and later at the secretary's apartment. During the second visit, Allis was accompanied by a private investigator who surreptitiously taped the conversation on a concealed tape recorder. Allis presented Janowski a typed statement indicating that "[a]t no time did I ever hear Cynthia Roller or anyone else say that Cynthia Roller did not take Bendectin." Id., at 26-27. Janowski signed the statement. The following day, December 28, 1982, Allis received a copy of a letter that Davis, Polk & Wardwell had sent to the District Court. The letter recounted Janowski's telephone calls, informed the court that petitioner had engaged independent counsel for Janowski, and requested a hearing. Id., at 21-22. Allis' firm responded with its own letter to the court. The letter recounted the story Janowski had told Allis. A copy of the statement obtained from Janowski was attached. Id., at 23-25. During subsequent discovery into the matter, Janowski recanted the signed statement. While the District Court and counsel were struggling with these unusual revelations, they were also preparing for an imminent trial. A pretrial hearing was scheduled to commence on January 31,1983, and trial was to commence immediately upon the conclusion of the hearing. On January 17, 1983, the trial judge issued a pretrial ruling excluding collateral evidence related to two children who had birth defects like those of the respondent. The court ruled that it would not "grant plaintiffs a license to submit the birth defects of children whose only demonstrable relationship to Anne Roller is that they have suffered birth defects that are superficially similar." Id., at 60-61. On January 28, 1983, James Butler submitted to the Food and Drug Administration a set of "Drug Experience Reports" prepared by his firm. The reports described the birth defects of a number of children whose mothers had taken Bendectin, including the two children covered by the District Court's order of January 17. In an accompanying letter, Butler urged the FDA to take Ben-dectin off the market. Butler sent copies of the reports and his letter to a reporter for the Washington Post. On January 31, 1983, the District Court ruled that it would not admit any "Drug Experience Reports" that were submitted to the FDA more than one year after the birth of the children involved. Id., at 84-91. The 14 reports Butler had submitted to the FDA fell within this category. The following day, a Washington Post reporter interviewed Butler at the attorney's invitation. Id., at 341. Butler discussed the Roller case and the materials he had sent to the FDA. On February 7, 1983, after the court had already called the February jury pool from which the Roller jury panel would likely be drawn, the Washington Post published a lengthy article discussing the Roller case and the Drug Experience Reports which the trial court had excluded from evidence. In the wake of these events, the District Court postponed the trial and allowed further discovery concerning Janowski's allegations. In February 1983, petitioner moved to disqualify Butler, Allis, and their firm from the Roller case on the ground of their alleged misconduct. After a 4-day eviden-tiary hearing on the issue of whether respondent's law firm had improperly obtained Janowski's statement, the District Judge issued an order requiring Butler and Allis to show cause why they and their firm should not be disqualified. The show cause order identified two "alleged incidents of misconduct" as possible grounds for disqualification: Butler's release of information to the Washington Post in an effort to "prejudice the jury" and to "bring inadmissible evidence before the jury pool," and Allis' preparing and obtaining a statement from Janowski "without regard for the truth" of the statement in an effort to protect his firm's financial interest and to thwart an investigation. Id., at 246-248. Butler and Allis opposed disqualification and defended their conduct in testimony at a lengthy hearing. Nevertheless, on January 6, 1984, the District Judge found that Allis had attempted "to thwart a true investigation of a crucial witness" and that Butler's release of information to the media "was calculated to prejudice the defendant's case and circumvent the Court's prior rulings." App. to Pet. for Cert. 77a-78a. Noting that respondent's other counsel of record could provide competent representation, the court revoked the pro hac vice admissions of Butler and Allis and the appearance of their law firm. Id., at 80a. Respondent appealed the disqualification to the Court of Appeals for the District of Columbia Circuit, which stayed all proceedings in the trial court pending the outcome of the appeal. App. 339. The Court of Appeals subsequently held that it had jurisdiction to entertain the appeal pursuant to 28 U. S. C. § 1291. On the merits, the panel held that the District Court's disqualification order was invalid and that the appearances of Allis, Butler, and their firm should be reinstated. 237 U. S. App. D. C. 333, 737 F. 2d 1038 (1984). We granted certiorari to review the Court of Appeals' jurisdictional ruling as well as its decision on the merits of the disqualification. 469 U. S. 915 (1984). HH HH Title 28 U. S. C. § 1291 grants the courts of appeals jurisdiction of appeals from all "final decisions of the district courts," except where a direct appeal lies to this Court. The statutory requirement of a "final decision" means that "a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981). As the Court noted in Firestone, the final judgment rule promotes efficient judicial adminstration while at the same time emphasizing the deference appellate courts owe to the district judge's decisions on the many questions of law and fact that arise before judgment. Ibid.; Flanagan v. United States, 465 U. S., at 263-264. Immediate review of every trial court ruling, while permitting more prompt correction of erroneous decisions, would impose unreasonable disruption, delay, and expense. It would also undermine the ability of district judges to supervise litigation. In § 1291 Congress has expressed a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by "piecemeal appellate review of trial court decisions which do not terminate the litigation." United States v. Hollywood Motor Car Co., 458 U. S. 263, 265 (1982). An order disqualifying counsel in a civil case is not a final judgment on the merits of the litigation. There has been no trial or final judgment in this case, and indeed the stay imposed by the Court of Appeals assures that there can be none pending the outcome of these interlocutory proceedings. Section 1291 accordingly provides jurisdiction for this appeal only if orders disqualifying counsel in civil cases fall within the "collateral order" exception to the final judgment rule. In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949), the Court recognized an exception to the final judgment rule for a "small class" of prejudgment orders which "finally determine claims of right separable from, and collateral to, rights asserted in the action, [and are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." The collateral order doctrine is a "narrow exception," Firestone, supra, at 374, whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal. See Helstoski v. Meanor, 442 U. S. 500, 506-508 (1979); Abney v. United States, 431 U. S. 651, 660-662 (1977). To fall within the exception, an order must at a minimum satisfy three conditions: It must "conclusively determine the disputed question," "resolve an important issue completely separate from the merits of the action," and "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978). Our recent decisions have strictly applied this test when parties pursued immediate appeal of trial court rulings on motions to disqualify counsel. In Firestone, supra, the Court held that a trial court order denying a motion to disqualify counsel in a civil case was not subject to immediate appeal. The Court assumed without deciding that such a ruling resolves an important issue completely separate from the merits, and thus meets the second part of the Coopers & Lybrand test. 449 U. S., at 376. Nevertheless, the Court refused to permit an interlocutory appeal because it found an order denying disqualification to be reviewable on appeal after a final judgment. Justice Marshall's opinion for the Court observed: "An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The propriety of the district court's denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the particular factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits." Id., at 377 (emphasis added). Firestone expressly left open the issue of whether orders granting disqualification are subject to immediate appeal, as well as the issue of whether orders denying disqualification in a criminal case fall within the collateral order exception. Id,., at 372, n. 8. Flanagan v. United States, supra, decided one of the issues left open in Firestone. There the Court held that a district court's pretrial order granting disqualification of defense counsel in a criminal case was not immediately appealable under § 1291. The unanimous opinion in Flanagan emphasized the strong interest of both the parties and society as a whole in speedy resolution of criminal cases. This important interest counsels application of the final judgment rule with "utmost strictness." 465 U. S., at 265. The Court then applied the standards enunciated in Coopers & Lybrand and concluded that criminal disqualification orders do not qualify for immediate appeal. Since Flanagan was decided, the Courts of Appeals have divided on the appealability of orders disqualifying counsel in a civil case. Compare Gibbs v. Paluk, 742 F. 2d 181, 184 (CA5 1984) (rejecting appeal pursuant to § 1291 in reliance on Flanagan), and Kahle v. Oppenheimer & Co., 748 F. 2d 337 (CA6 1984) (rejecting appeal of order disqualifying counsel who was needed as witness), with Banque de Rive, S.A. v. Highland Beach Development Corp., 758 F. 2d 559 (CA11 1985) (distinguishing Flanagan and accepting appeal pursuant to § 1291); Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F. 2d 253, 255 (CA2 1984) (same); and Panduit Corp. v. All States Plastics Manufacturing Co., 744 F. 2d 1564 (CA Fed. 1984) (same). We granted certiorari to resolve the conflict. Ill The decision below allowing immediate appeal of the disqualification order rests primarily on two lines of reasoning. First, the Court of Appeals identifies policy considerations that suggest civil disqualification orders should fall within the collateral order doctrine even though criminal disqualification orders do not. Second, the court attempts to distinguish Flanagan's application of the Coopers & Lybrand test. A At least four policy considerations are articulated in the course of the appellate opinion. First, the panel suggests that the societal interest in prompt adjudication of disputes is weaker in civil cases than in criminal cases, and that the "extraordinary limits on the collateral order doctrine" in the criminal context have not been carried over to civil cases. 237 U. S. App. D. C., at 345-346, 737 F. 2d, at 1050-1051. The appellate court further reasons that "disruption and delay of proceedings on the merits are unhappily foreseeable byproducts of the injudicious use of disqualification motions," and that this disruption "would be exacerbated were orders disqualifying counsel not immediately appealable." Id., at 359, 737 F. 2d, at 1064. Third, the panel concludes that immediate appeal should be available not only to vindicate the client's choice of counsel, but also to vindicate "the interest of the attorneys, who are parties to this appeal, in correcting what they claim is an erroneous finding of misconduct." Id., at 348-349, 737 F. 2d, at 1053-1054. The panel notes that "[i]n the event that plaintiffs were satisfied with the final verdict obtained by substitute counsel, the disqualified attorneys could be left with no means whatsoever of vindicating their own important interests on appeal from a final judgment." Ibid. Finally, the Court of Appeals expresses concern that the use of motions to disqualify counsel in order to delay civil proceedings and to harass opponents has become prevalent in recent years. "To insulate from prompt review an erroneous order granting a motion to disqualify counsel," the Court of Appeals concluded, "would only raise the stakes in this dangerous game." Id., at 346, 737 F. 2d, at 1051. We do not find these policy arguments persuasive. Although delay is anathema in criminal cases, it is also unde sirable in civil disputes, as the Court of Appeals itself recognized. One purpose of the final judgment rule embodied in § 1291 is to avoid the delay that inherently accompanies time-consuming interlocutory appeals. Flanagan, 465 U. S., at 264. When an appellate court accepts jurisdiction of an order disqualifying counsel, the practical effect is to delay proceedings on the merits until the appeal is decided. As in this case, the appellate court may stay all proceedings during appellate review. Even where the appellate court fails to impose a stay, it would take an intrepid District Judge to proceed to trial with alternate counsel while her decision disqualifying an attorney is being examined in the Court of Appeals. The delay accompanying an appeal results not only when counsel appeals "injudicious use of disqualification motions," but also when counsel appeals an entirely proper disqualification order. Most pretrial orders of district judges are ultimately affirmed by appellate courts. 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3907, p. 433 (1976). Given an attorney's personal and financial interest in the disqualification decision, orders disqualifying counsel may be more likely to lead to an interlocutory appeal than other pretrial rulings, whether those rulings are correct or otherwise. To be sure, an order granting disqualification itself leads to delay. Alternate counsel must often be retained. Even in cases like this one where competent alternate counsel had already entered appearances and participated in the litigation, such counsel will need time to gain the knowledge of the disqualified attorneys. But where the disqualification decision of the trial court is correct, this delay is unavoidable. We do not think that the delay resulting from the occasionally erroneous disqualification outweighs the delay that would result from allowing piecemeal appeal of every order disqualifying counsel. We also decline to view the disqualified attorney's personal desire for vindication as an independent ground for interlocu tory appeal. An attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client's interest. See ABA Model Rules of Professional Conduct 1.7(b), 2.1 (1985). In neither Firestone nor Flanagan did the Court regard the attorney's personal interest in a disqualification ruling as relevant or dispositive. Moreover, a rule precluding appeal pursuant to § 1291 would not necessarily leave the client or the disqualified attorney without a remedy. As we noted in Firestone, "a party may seek to have the question certified for interlocutory appellate review pursuant to 28 U. S. C. § 1292(b), . . . and, in the exceptional circumstances for which it was designed, a writ of mandamus from the court of appeals might be available." 449 U. S., at 378-379, n. 13. Alternatively, if the client obtains an unsatisfactory judgment with substitute counsel, the disqualification ruling may be challenged on appeal of a final judgment. Even when the client is satisfied with the judgment obtained by substitute counsel, an attorney whose reputation has been egregiously injured by the trial court's disqualification decision might be able to obtain relief from the Circuit Judicial Council pursuant to 28 U. S. C. § 332(d)(1). Finally, we share the Court of Appeals' concern about "tactical use of disqualification motions" to harass opposing counsel. Nevertheless, we do not believe that this "dangerous game" constitutes an independent justification for immediate appeal of an order disqualifying an attorney. Implicit in § 1291 is Congress' judgment that the district judge has primary responsibility to police the prejudgment tactics of litigants, and that the district judge can better exercise that responsibility if the appellate courts do not repeatedly intervene to second-guess prejudgment rulings. Cf. Cohen v. Beneficial Loan Corp., 337 U. S., at 546 ("Appeal gives the upper court a power of review, not one of intervention"). Like any referee, the district judge will occasionally make mistakes. A mistaken ruling disqualifying counsel imposes financial hardship on both the disqualified lawyer and the client. But the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress. Coopers & Lybrand, 437 U. S., at 476, and n. 28; Will v. United States, 389 U. S. 90, 98, n. 6 (1967). "If the expense of litigation were a sufficient reason for granting an exception to the final judgment rule, the exception might well swallow the rule." Lusardi v. Xerox Corp., 747 F. 2d 174, 178 (CA3 1984). The Coopers & Lybrand test looks not to the litigation expense imposed by a possibly erroneous ruling, but rather to whether the right affected by the ruling can and should be protected by appeal prior to judgment. To that inquiry we now turn. B In Flanagan, the Court held that orders disqualifying counsel in criminal cases cannot satisfy either the second or the third parts of the Coopers & Lybrand test: If a showing of prejudice is a prerequisite to reversal, then the ruling is not "completely separate" from the merits because it cannot be assessed until a final judgment has been entered; on the other hand, if a showing of prejudice is not required, then the ruling can be effectively reviewed on appeal of the final judgment. 465 U. S., at 267-269. Apart from its policy discussion, the Court of Appeals held that Flanagan's analysis is inapplicable in the civil context. First, the appellate panel asserted that a showing of prejudice would be required in civil cases: "Only an erroneous disqualification combined with prejudice at trial could conceivably result in outright reversal of a civil judgment." 237 U. S. App. D. C., at 347, 737 F. 2d, at 1052. Nevertheless, the panel concluded that the ruling is both incapable of review on appeal of a final judgment and completely separate from the merits. The panel concluded that a disqualification order is unreviewable on appeal of a final judgment because: "[I]t would appear virtually impossible to show prejudice resulting from the absence of one counsel and the substitution of another. In a criminal case, a reviewing court could at least draw from the extensive body of law concerning effective assistance of counsel as a first step in determining whether substitute counsel's performance prejudiced the defense so as to require reversal. In the civil context, however, the court would be without a starting point; because there is no sixth amendment right involved, there is no body of law to help a court evaluate whether a civil judgment should be overturned because of the quality of counsel's representation." Ibid, (footnote omitted). The panel finally concluded that the disqualification ruling was completely separate from the merits, even though prejudice is a prerequisite to reversal of a judgment, because (1) it would be difficult to show that prejudice resulted from an erroneous disqualification; (2) the extensive record in this particular case "presents an entirely adequate basis for determining whether the district court's order was proper"; and (3) the "validity" of a disqualification order in a civil case does not depend on either prejudice or the Sixth Amendment right to counsel. Id., at 347-348, 737 F. 2d, at 1052-1053. We find these efforts to distinguish Flanagan unavailing. To a large extent, the Court of Appeals' analysis rests on a conundrum of its own making. This Court has never held that prejudice is a prerequisite to reversal of a judgment following erroneous disqualification of counsel in either criminal or civil cases. As in Flanagan, we need not today decide this question. But we note that the difficulties in proving prejudice identified by the Court of Appeals go more to the issue of the showing required to reverse a final judgment than to whether a disqualification order should be subject to immediate appeal. The Court of Appeals relies on a requirement of prejudice to overcome the third Coopers & Lybrand requirement that the ruling "be effectively unreviewable on appeal from a final judgment." 437 U. S., at 468. Yet by reversing the decision of the District Court on the interlocutory appeal, the Court of Appeals implicitly held that a showing of prejudice is not required on interlocutory appeal. We are unpersuaded by this analysis. As in Flanagan, we conclude that, if establishing a violation of one's right to counsel of choice in civil cases requires no showing of prejudice, then "a pretrial order violating the right does not meet the third condition for coverage by the collateral-order exception: it is not 'effectively unreviewable on appeal from a final judgment.' " 465 U. S., at 268. Absent a requirement of prejudice, the propriety of the trial court's disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal. We must likewise reject the Court of Appeals' suggestion that civil orders disqualifying counsel satisfy the second condition of the collateral order exception. To do so it is enough to rely on Flanagan. If the nature of the right to representation by counsel of one's choice is that "[it] is not violated absent some specifically demonstrated prejudice," ibid., then a disqualification order, though "final," is not independent of the issues to be tried. Only after assessing the effect of the ruling on the final judgment could an appellate court decide whether the client's rights had been prejudiced. If respondent were to proceed to trial and there receive as effective or better assistance from substitute counsel than the disqualified attorney could provide, any subsequent appeal of the disqualification ruling would fail. For the same reasons as in Flanagan, the disqualification ruling would be inextricably tied up in the merits. Even apart from Flanagan's analysis, we would conclude that orders disqualifying counsel in civil cases are not "completely separate from the merits of the action." Coopers & Lybrand, 437 U. S., at 468. The Court of Appeals asserts that, in this particular case, the extensive record "presents an entirely adequate basis for determining whether the district court's order was proper." 237 U. S. App. D. C., at 348, 737 F. 2d, at 1053. This Court, however, has expressly rejected efforts to reduce the finality requirement of § 1291 to a case-by-case determination of whether a particular ruling should be subject to appeal. Coopers & Lybrand, supra, at 473-475. Even if some orders disqualifying counsel are separable from the merits of the litigation, many are not. Orders disqualifying attorneys on the ground that they should testify at trial, for example, are inextricable from the merits because they involve an assessment of the likely course of the trial and the effect of the attorney's testimony on the judgment. Kahle v. Oppenheimer & Co., 748 F. 2d, at 339. Appellate review of orders disqualifying counsel for misconduct may be entwined with the merits of the litigation as well. If reversal hinges on whether the alleged misconduct is "likely to infect future proceedings," 237 U. S. App. D. C., at 351, 737 F. 2d, at 1056, courts of appeals will often have to review the nature and content of those proceedings to determine whether the standard is met. In this case, for example, the Court of Appeals opinion exhaustively discusses respondent's claim on the merits, the relevance of the alleged instances of misconduct to the attorney's zealous pursuit of that claim, the pretrial proceedings in the trial court, and the danger that it will be difficult for the trial judge "to act with complete impartiality in future proceedings." Id., at 359, 737 F. 2d, at 1064. In light of these factors, we conclude that orders disqualifying counsel in civil cases, as a class, are not sufficiently separable from the merits to qualify for interlocutory appeal. IV We acknowledge that an order disqualifying counsel may impose significant hardship on litigants. Particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to § 1291. But in the words of Judge Adams: "[I]t would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon th 3 deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress." Bachowski v. Usery, 545 F. 2d 363, 373-374 (CA3 1976). As in Firestone, we decline to "transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291." 449 U. S., at 378. We hold that orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as "final judgments" within the meaning of 28 U. S. C. § 1291. The Court of Appeals lacked jurisdiction to entertain respondent's appeal and should not have reached the merits. Firestone, 449 U. S., at 379. We accordingly do not address the additional issues on which we granted certiorari, and we do not intimate any view on the merits of the District Court's disqualification decision. The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction. It is so ordered. Justice Powell took no part in the decision of this case. In their response to the District Court's order to show cause, Butler and Allis suggested that the court should certify any ruling disqualifying them for appeal pursuant to 28 U. S. C. § 1292(b). App. 253. Respondent apparently never moved for certification after the disqualification order of January 4, 1984. The sole basis for appellate jurisdiction asserted by respondent and by the Court of Appeals is 28 U. S. C. § 1291. Although it is well established that Judicial Councils do not exist to review claims that a particular trial judge's rulings were erroneous, In re Charge of Judicial Misconduct, 613 F. 2d 768 (CA9 1980), they do exist "to provide an administrative remedy for misconduct of a judge for which no judicial remedy is available." In re Charge of Judicial Misconduct, 595 F. 2d 517 (CA9 1979). Cf. In re Complaint of A. H. Robins Co., JCP 84-001 (CA8 Judicial Council, Dec. 26, 1984) (noting that Judicial Council conducted hearings, received briefs, and heard oral arguments on complaint that Federal District Judge improperly accused counsel of misconduct, and then dismissed complaint as moot only because a Circuit panel found separate grounds to permit an appeal in Gardiner v. A. H. Robins Co., 747 F. 2d 1180 (CA8 1984)).

15 Cust. Ct. 156

Oliver, Presiding Judge: The merchandise involved in this suit (represented bj exhibits 1, 2, and 3) is described on the invoice as "World Fair Dolls." Two of these articles are hollow celluloid figures. Exhibit 1 is approximately 4}( inches in height; exhibit 2 about 6 inches. Exhibit 3 is a floppy cotton article about 12 inches in length, with a celluloid head. All these figures are colored and are manufactured so as to simulate a military uniform, with the World's Fair insignia of the "Perisphere" and "Trylon" on the hat. The dolls were assessed under the respective provisions therefor in paragraph 1513 of the Tariff Act of 1930, reading: Par. 1513. dolls and toys, composed wholly or in chief value of any product provided for in paragraph 31, not having any movable member or part, 1 cent each and 50 per centum ad valorem, all other dolls, of whatever materials composed, 70 per centum ad valorem. Counsel stipulated that the cotton figure represented by exhibit 3 (and also by illustrative exhibit A) is in chief value of cotton velveteens or cotton velvets (it. 121). Plaintiff claims that the celluloid figures are properly dutiable at 60 per centum ad valorem under paragraph 31 as articles composed in chief value of one of the cellulose compounds provided for therein, and that the cotton velvet articles are dutiable as manufactures of cotton at 40 per centum under paragraph 923, or as articles in chief value of cotton velveteens or velvets at 62% per centum under paragraph 909. Plaintiff further contends that these figures are not the kind of dolls contemplated by paragraph 1513, in that they are not used by children as toys at play and that they do not fall within the dictionary definitions of "doll." Defendant, however, in support of the collector's classification, contends that the imported articles are dolls; that they are bought, sold, and invoiced as dolls and are included in, and covered by, the doll provisions of paragraph 1513, whether or not they are toys. The Government further claims that the dictionary definitions do not go far enough and that in the trade and commerce of the United States a doll may be something more than a puppet -for the use of children at play. The brief of amici curiae outlines the development of legislation and judicial interpretation prior to the act of 1930, and agrees with the contention of the Government that these articles have been properly classified under paragraph 1513 as dolls. Plaintiff's four witnesses, all but one of whom were or formerly had been connected with the plaintiff corporation, testified that while these figures were bought, invoiced, and sold as dolls, and they personally referred to them in their testimony as dolls, they were not dolls since they were not sold in toy stores or in toy departments and had no play value for children. Three of the witnesses testified that the celluloid figures (exhibits 1 and 2) and the cotton figure (exhibit 3) were used by concessionaires at fairs and carnivals where they were given away or sold to adults. This use was supported by the testimony of plaintiff's witness Kaplan, a carnival concessionaire. These witnesses agreed with the dictionary definitions of a doll as being used by children as a plaything and were of opinion that the articles here before us did not come within these definitions which are given below: A toy puppet representing a person, and used as a plaything by children, especially by girls. [Funk & Wagnalls New Standard Dictionary of English Language, 1939.] A puppet representing a child, usually a little girl (but also sometimes a boy or a man, as a soldier, etc.), used as a toy by children, especially by girls. [Century Dictionary and Cyclopedia.] A child's puppet; esp., a toy baby for a child; any similar figure for play or ornament. [Webster's New International Dictionary, 2d Ed., 1936.] Defendant's six witnesses, all duly qualified, five of whom were experienced manufacturers of dolls, toys, and novelties, were in complete agreement that the imported articles were dolls. They testified 'that the dictionary definitions above referred to were not broad enough to cover all dolls and that this term was not confined to toys or playthings for children but included dolls used by adults, such as boudoir dolls, and also dolls for display and commercial and other uses. They also agreed that the use to which it is put is not con trolling in determining whether or not an article is a doll. In disagreeing with the dictionary definitions, one of these witnesses gave his definition of a doll as follows (R. 114): A doll is really a commercial reproduction of either an artist's conception of a figure, or the artist's conception of a child, or the artist's conception of what might be on the printed page, or a reproduction of some character either from fiction or from fact, or, at the present time the trend is towards military dolls, soldier dolls, WACS and WAVES, in which the artist, or designer, reproduces in miniature, as compared to the size of the original model, a soldier, or sailor; or sometimes dolls are the result of fads. We had a Teddy Bear fad in the country and right after that they took and put the head from the little Billiken on it and called it the Billiken doll, which was the forerunner of our domestic production. From then on no matter what the material that it is made out of, its general form, which is grotesque and out of proportion, as long as it has a human characteristic it is a doll. In the eyes of the trade and those seeking to purchase that type of merchandise — they come to the doll trade to buy it. It is evident from this record that there are many kinds of dolls, probably the most popular and numerous being those designed especially as playthings for children. Other dolls are designed for purposes of ornamentation, such as boudoir dolls used by adults, and others such as those now before us being used as souvenirs or prizes at carnivals or fairs. There are also dolls for display and advertising purposes which are not used by children and were never designed for such use. The tariff history on the subject of dolls and many of the decisions up to and including those under the Tariff Act of 1922 were reviewed by our appellate court in United States v. Schmidt (13 Ct. Cust. Appls. 252, T. D. 41200), wherein articles made of plaster of paris representing the head and bust of a woman, for use in connection with telephone covers and utilitarian purposes and not for the amusement of children, were hold to be dutiable as manufactures of plaster of paris under paragraph 1440, Tariff Act of 1922, and not as doll heads under paragraph 1414 of that act. In that case, decided in 1925, the court said (p. 255): Throughout all these decisions of the Board of General Appraisers the controlling issue was whether the article in question was intended and used for the amusement of children or whether it was intended and used for ornamental, practical, or some other purposes. In the first instance it was properly classified under the doll or toy paragraph; in the second, under some other appropriate paragraph, usually according to its component material of chief value. This was the well-established rule for the classification of such articles when the Tariff Act of 1922 was prepared and enacted. That portion of paragraph 1414 referring to dolls and doll heads, being a reenactment of the preceding statute, paragraph 342 of the tariff act of October 3, 1913, without change, it must be assumed that the Congress knew and assented to the rule of construction that had been thus established. United States v. Beierle, 1 Ct. Cust. Appls. 457; United States v. Von Bremen et al., 12 Ct. Cust. Appls. 407. In that case it was argued that the inclusion of the new language -in paragraph 1414 of the act of 1922 made necessary a different con struction — that certain articles being therein enumerated which are not toys, it followed that only such of the articles named in the paragraph which are preceded by the word "toy," such as "toy marbles," "toy books," etc., should be held to be dutiable as toys. The court refused to adopt such construction, citing and quoting from United States v. Strauss (13 Ct. Cust. Appls. 167, T. D. 41025) to the effect that the new provisions in paragraph 1414 of the Tariff Act of 1922 were not involved and that as far as the merchandise under consideration was concerned when. Congress enacted paragraph 1414 of the act of 1922, it had the same merchandise in mind that it had when it enacted paragraph 418 of the act of 1897. Thereafter, in Laszlo v. United States (27 C. C. P. A. 152, C. A. D. 76), the court held that the term "air rifles" in paragraph 1513 of the Tariff Act of 1930 was not intended to be restricted tó such air rifles as were toys but included all air rifles of every description. Referring to United States v. Schmidt, supra, and other previous decisions of the courts, wherein it had been held that only dolls which were in fact toys were included in the so-called toy paragraph, our appellate court stated (p. 156): These eases require no discussion by us for the reason that paragraph 1513 of the Tariff Act of 1930 differs greatly from previous provisions in other tariff acts with relation to dolls, and it would seem that under said paragraph all dolls, whether toys or not, are included therein. However, that question is not before usj and it is not necessary to determine it here. [Italics supplied.] In Kresge v. United States (25 C. C. P. A. 1, T. D. 48975), it was held that the provision in the Tariff Act of 1930 for "Christmas tree decorations" embraced articles distinct from toys, and, though provided for in paragraph 1513, they are not required to be toys for classification thereunder. In Pressner v. United States (7 Cust. Ct. 106, C. D. 546), cited by both the plaintiff and defendant, miniature figures resembling football players were held not to be dutiable as "dolls" under the provisions of paragraph 1513, Tariff Act of 1930. That case was decided upon the common meaning, and the court held that the imported merchandise was outside the definition of the term "dolls" as given by the lexicographers. No attempt was made to establish commercial meaning. Although all of the four witnesses for the defendant therein testified that the exhibits representing the imported merchandise there before the court were dolls, none of them, as the court pointed out, "had purchased, sold, used,-or seen the imported merchandise." After commenting on Laszlo v. United States, supra, the court (Tilson, J.) stated: Dolls are unquestionably included in and covered by said paragraph 1513, whether toys or not, but the above decision is no evidence of whether a miniature figure is or is not a doll. [Italics supplied.] In the Tariff Act of 1930, the wording of the so-called "toy" paragraph (1513) was substantially changed from the corresponding paragraph of the act of 1922 (1414), particularly in relation to dolls, by adding new provisions covering dolls and doll clothing, composed of "laces, fabrics, embroideries, or other materials or articles provided for in paragraph 1529 (a)"; and dolls "composed of any product provided for in paragraph 31"; also, by incorporating in the law the definition of the term "toy" as used in that paragraph. Such a substantial change in language imports a change of meaning (United States v. American Brown Boveri Electric Corp., 17 C. C. P. A. 329, T. D. 43776). It seems clear that Congress, by these new provisions relating to dolls and by defining the term "toy" as used in the paragraph, indicated an intent that the provision for dolls should be treated as an independent provision separate and distinct from the provision for toys and not to be limited to such dolls as were toys but should include all dolls. This view was clearly that of our appellate court, in Laszlo v. United States, supra, and of our own court in Pressner v. United States, supra. The sole question before us is whether or not these imported figures (exhibits 1, 2, and 3) are dolls. If they are, it is immaterial whether or not they are chiefly used for the amusement of children. The record in the present case establishes by a fair preponderance of the evidence that the articles under consideration are dolls and were so known in the trade; that the term "doll" is not confined to articles used as playthings for children but includes those for ornamental purposes, for advertising, and for other uses; and that the term "doll" in the trade and commerce of flie United States had a definite, uniform, and general meaning which included such dolls as those now before us. Furthermore, we are of opinion that the common meaning of that term is sufficiently comprehensive to include all dolls, whether or not they are toys. In support of this view, it will be noted that the secondary definition of "doll" as given in Webster's New International Dictionary, 2d Edition, 1936, reads: any similar figure for play or ornament [Italics supplied]. This broader view is further borne out by a comprehensive article on the subject of dolls appearing in the Encyclopaedia Britannica, 14th Edition, wherein the history, development and use of various types of dolls are set forth in detail, indicating besides their use as playthings for children, wide use'in religious rites and other ceremonies in many parts of the world from earliest times to the present day. The article also contains the following comment (p. 510): During the World War elaborately costumed dolls of the latter type [dolls intended to illustrate seasonal fashions], made very often by women artists as a means of livelihood in the period of distress, and bought by adults for ornamental purposes, if not as playthings, were produced in large numbers and acquired great popularity as gifts and keepsakes among the well-to-do. We do not make any all-embracing finding as to wbat is a doll or to hold that all small figures are dolls, but we do find that the articles here before us are dolls. Haying so found, we hold the merchandise involved to be properly dutiable under the applicable eo nomine provisions for dolls in paragraph 1513, as classified by the collector. The protest is overruled and the classification of the collector is affirmed.

568 U.S. 1143

C. A. 3d Cir. Certiorari denied.

403 U.S. 939

C. A. 1st Cir. Stay entered by this Court on June 11, 1971 [ante, p. 913], vacated. Order of ' June 4, 1971, of the Court of Appeals that "Fisher will be ordered released as soon as the district court can conduct a hearing," vacated and set aside. Provision of order of District Court entered July 13, 1970, that petitioner be discharged unless "timely retried without the use of tainted evidence" [314 F. Supp. 929, 938], reinstated and made effective from this date. Certiorari denied.

568 U.S. 1035

Sup. Ct. S. D. Certio-rari denied.

235 U.S. App. D.C. 122

Opinion for the Court filed by Senior Circuit Judge MacKINNON. MacKINNON, Senior Circuit Judge: This is a class action, brought on behalf of employees and former employees of Anchor Post Products, Inc. ("Anchor"), against the National Shopmen Pension Fund (the "Fund"). The Fund cancelled certain employee service credits of members of the class, which resulted in a reduction of pension benefits to the class members. The district court found that the Fund's actions violated provisions of the Employee Retirement Income Security Act of 1974 (ERISA). Stewart v. National Shopmen Pension Fund, 563 F.Supp. 773 (D.D.C.1983). We reverse the district court and remand the decision for consideration of other issues in the case. I. The National Shopmen Pension Fund is a multi-employer pension fund as defined by ERISA § 3(2), 3(37)(A). Its board of trustees is made up of three representatives of the International Association of Bridge, Structural and Ornamental Iron Workers (the "Union") and three representatives of participating employers. The Fund was in existence prior to the enactment of ERISA, and has been modified to comply with the relevant provisions of that statute. The Internal Revenue Service has certified that the Fund is in compliance with applicable ERISA standards (J.A. 203-05). Most of the facts are stipulated. In 1969, Anchor entered into a collective bargaining agreement with the Union at Anchor's plant in Baltimore, Maryland. The agreement provided, inter alia, that Anchor would begin making pension contributions to the Fund on behalf of its employees, who prior to 1969 had not been enrolled in the Fund. As was its usual practice, the Fund, in computing pension benefits, granted full credit to all Anchor employees for the years they spent with Anchor prior to enrollment in the pension plan. These pre-enrollment credits are known as "past" or "precontributory" service credits. Service credits earned after an employer has begun contributing are known as "future" or "contributory" service credits. Ordinarily, precontributory and contributory service credits are added together to determine the amount of the individual employee's pension. Anchor continued to make contributions to the Fund until 1979, when it closed its Baltimore plant. The closing terminated Anchor's obligations under its collective bargaining agreement. Anchor stopped making contributions to the Fund and withdrew from all participation in it. To assess the impact of Anchor's withdrawal, the Fund authorized an actuarial study by the Martin E. Segal Company ("Segal"). The Segal study showed that Anchor had, over the ten-year period, contributed $337,129 to the Fund. Its allocated share of Fund assets at termination was $298,912. The total vested liability of the Fund to Anchor employees was $1,049,181. Thus, the total "unfunded liability" — the amount of pension liability for which no one had paid anything into the Fund — was $750,268, or about 1.8 percent of the total assets of the Fund (J.A. 121,207). A provision of the Fund's 1976 plan permits the Fund, in cases where unfunded liability is "dumped" into it by an employer, to cancel the precontributory service of present and former employees of that employer. This provision, § 2.09, states: (a) If an Employer's participation in the Fund with respect to a bargaining unit or group terminates, the Trustees are empowered to cancel any obligation of the Trust Fund that is maintained under the Trust Agreement with respect to that part of any pension for which a person was made eligible on the basis of employment in such bargaining unit or group prior to the Contribution Period with respect to that unit or group. Neither shall the Trustees, the Employers who remain as Contributing Employers, nor the Union be obligated to make such payments. (J.A. 181.) On the basis of its study, Segal recommended that the Fund use § 2.09 to cancel the precontributory service credits of the Anchor employees. The Segal report concluded that even if all precontributory service were cancelled, the Fund would still face an unfunded liability of $154,728, which it would have to absorb (J.A. 207). (As of 1980, the Fund had total assets of $40,700,919 (J.A. 121).) The report's recommendation was unanimously adopted by the trustees in March, 1980 (J.A. 210). All precontributory service of Anchor employees was cancelled for purposes of determining benefits. . George Stewart and Lee Roy Warren are two of the affected Anchor employees. Stewart had been an employee of Anchor since 1940. When Anchor joined the Fund, he was granted 23 years of precontributory service for his work prior to 1969. He continued to work for another 2.7 years after Anchor joined the Fund, and then retired. His initial pension, calculated on 25.7 years of total service, was $80 per month (J.A. 114-18). Warren began working for Anchor in 1959. He had earned 10.6 years of precontributory service prior to 1969. He continued working for Anchor until the Baltimore plant closed in 1979, earning 10.4 years of contributory service. He applied for early retirement when the Anchor plant closed (J.A. 119-20), and his pension, if calculated on his 21 years of total service, would have been $89 per month. When the Fund cancelled the precontributory service, both Stewart and Warren suffered significant pension cuts. Stewart's pension, now calculated solely on his 2.7 years of contributory service, came to only $9 per month. Warren had his pension cut to $45 per month, calculated solely on his 10.4 years of contributory service. Stewart and Warren brought this class action, seeking to have the Fund's application of § 2.09 declared invalid and to have their full pension benefits restored. The district court held that the trustees' actions violated ERISA. There are two issues. First, as a threshold matter, is the Fund collaterally estopped from arguing the validity of its actions by the Ninth Circuit's decision in Fentron Industries v. National Shopmen Pension Fund, 674 F.2d 1300 (9th Cir.1982)? Second, did the action of the Fund's trustees in cancelling the precontributory service of Anchor employees violate specific procedural requirements of ERISA? II. The plaintiffs' collateral estoppel (issue preclusion) claim, which the district court rejected, depends upon the effect of the Ninth Circuit's Fentron decision. The plaintiffs argue that the court in Fentron passed on the same section of the same plan, and found it invalid. Hence, they assert, the Fund should be precluded by the Fentron adjudication from arguing here that the provision is valid. The plaintiffs were not parties to the Fentron decision. They seek to use collateral estoppel offensively under the doctrine of Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-31, 99 S.Ct. 645, 650-52, 58 L.Ed.2d 552 (1979). Collateral estoppel bars relitigation of issues that were "actually and necessarily determined by a court of competent jurisdiction." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) (emphasis added). The Restatement phrases it this way: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive____ Restatement (Second) of Judgments § 27 (1982) (emphasis added). The Fund thus is precluded only from litigating issues that were actually and necessarily decided in Fentron. The plaintiffs assert flatly that "Fentron fully evaluated the identical rule at issue in this case and found it illegal." Brief of Appellee at 36. On the contrary, the Fentron court specifically refrained from holding that § 2.09 was "invalid on its face," holding only that § 2.09 as applied in that case violated ERISA. 674 F.2d at 1306. We therefore must determine the extent to which the acts of the trustees were held to be violations by the Ninth Circuit. In Fentron, the Fund relied on § 2.09 to cancel precontributory service credits of employees whose employer had effectively withdrawn from the Fund. The Fund can-celled the benefits for purposes of both vesting (i.e., the employee's right to receive a pension) and calculation of benefits {i.e., the amount of the pension to which the employee has a right). Thus, if an employer in Fentron had 20 years of precontributory service, and 9 years of contributory service, he would be denied any pension because the Fund requires a minimum of 10 years of service for vesting. All of the employees in Fentron had less than 10 years of contributory service. 674 F.2d at 1306. The Fund's cancellation of benefits for all purposes thus completely divested employees of their vested right to a pension, and deprived them of pension benefits even for their contributory service. The Ninth Circuit held that such benefit divestiture, although authorized by the Fund's plan, amounted to a "vesting schedule amendment": Before the cancellation of Past Service Credits, the benefits of all members of the class were vested under the 1969 Plan. The effect of cancelling Past Service Credits was to diminish the pension credits of all members, each of whom at that time had to have Past Service Credits to qualify for pension vesting under the 1969 Plan. The cancellation thus divested previously vested employees, who then would only be eligible for vesting in the future, if at all. The trustees' use of section 2.09 was therefore a vesting schedule amendment and, in the absence of the option to compute benefits under the 1969 Plan, is prohibited by ERISA § 203(c)(1)(B). Id. (emphasis added). According to the Fentron court, the use of § 2.09 to fully divest participants changed their vested status, and hence required the Fund to use a statutory procedure that the trustees had not followed. In the case at bar, the Fund has not attempted to divest the plaintiffs completely of their right to a pension. All of the class members will receive pensions, although such pensions will be based solely on the years of contributory service. The issue in this case is whether accrued benefits can be reduced, not whether an employee may be completely divested. The distinction is between the right to receive a pension and the amount of the pension. We do not believe that the Fentron case reached the question of reduction of benefits. There is language in Fentron which arguably is broad enough to cover the issue in this case. But to the extent that such language goes beyond the issue decided in the case, it will not bar subsequent litigation of related issues. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979); Montana v. United States, supra, 440 U.S. at 153, 99 S.Ct. at 973. See Segal v. American Telephone & Telegraph Co., 606 F.2d 842, 845 n. 2 (9th Cir.1979) (per curiam) ("relitigation of an issue . is not foreclosed if the decision of the issue was not necessary to the judgment reached in the prior litigation"). That the Fentron holding did not cover situations in which only accrued benefits are reduced can be seen clearly from the Ninth Circuit's subsequent decision in Elser v. I.A.M. National Pension Fund, 684 F.2d 648 (9th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 67, 78 L.Ed.2d 82 (1983). Elser, which was decided only seven months after Fentron, held that a pension fund could use a provision substantially similar to § 2.09 to cancel precontributory service for purposes of reducing benefits, although the court held that such action could not be taken arbitrarily or capriciously. The Elser court cited Fentron in passing, but apparently did not consider that it addressed the issue involved in this case since it did not mention Fentron in connection with that issue. Elser, in fact, cited with approval a district court case from this circuit, Central Tool Co. v. International Association of Machinists National Pension Fund, 523 F.Supp. 812 (D.D.C.1981), appeal docketed, Nos. 81-2047 & -2056 (D.C.Cir. Sept. 25, 1981), which held that in an appropriate case pension funds could reduce benefits by cancel-ling precontributory service. In sum, we do not interpret the Fentron decision as holding that § 2.09 could never be applied to reduce benefits to employees with vested pension rights. The Fund is therefore not collaterally estopped from litigating the validity of the benefit cancellation involved in this case to the extent that they were reduced. III. We come then to the main issue in this case. Does a pension fund have the right under ERISA to use a preexisting plan provision to cancel unilaterally, for purposes of benefit computation, the precontributory service credits of employees whose employer has withdrawn from the fund? The district court relied on two grounds in holding that such cancellation violated ERI-SA. First, the court held that the resulting change in pension benefits to the affected employees was a "vesting schedule amendment" that did not comply with § 203(c)(1)(B) of ERISA because the employees were not given the chance to have their benefits calculated under the pre"amendment" formula. Second, the court found that the benefit reduction violated § 204(g) of ERISA because it had not been submitted to the Secretary of Labor for his approval. A. ERISA § 203 is the statutory provision that sets forth the minimum vesting standards that private pension plans must meet. Generally, plans will satisfy § 203 if vested benefits become "nonforfeitable" upon the occurrence of certain conditions spelled out in this section. If benefits are found to be "forfeitable" the pension fund does not comply with ERISA. But there are exceptions to the strict nonforfeitability requirements. Section 203(a)(3) provides that a benefit will not be considered "forfeitable" on the sole ground that it can be divested or reduced in certain specified circumstances. For example, subsection (a)(3)(A) allows a pension fund to terminate benefits on the death of the employee. Subsection (a)(3)(B) permits termination of benefits if the employee who is receiving the pension goes back to work under certain circumstances. Subsection (a)(3)(D) allows benefits to be withheld to the extent that an employee who has contributed his own money to a pension fund withdraws money from his account. Most importantly, for purposes of this case, subsection (a)(3)(E) provides: A right to an accrued benefit derived from employer contributions under a multiemployer plan shall not be treated as forfeitable solely because the plan provides that benefits accrued as a result of service with the participant's employer before the employer had an obligation to contribute under the plan may not be payable if the employer ceases contributions to the multiemployer plan. Benefit reductions or cancellations carried out under § 203(a)(3) do not violate ERI-SA's nonforfeitability requirements. Thus, a provision permitting cancellation of precontributory service credits does not, in itself, violate the vesting requirements of § 203. The district court, however, did not believe that § 203 created an automatic right to cancel precontributory service credits. In reaching its conclusion, the court relied on two other provisions of ERISA. First, the court examined § 203(c)(1)(B), which provides: A plan amendment changing any vesting schedule under the plan shall be treated as not satisfying the requirements of [the vesting provisions] . unless each participant having not less than 5 years of service is permitted to elect, within a reasonable period after adoption of such amendment, to have his nonforfeitable percentage computed under the plan without regard to such amendment. Under this section, when a plan is amended to change the vesting schedule, employees who have more than 5 years of service must be given a choice: they may choose to have their benefits calculated under the pre-amendment or post-amendment plan formulas. The district court found that the trustees' action in cancelling the service credits was an "amendment" to the plan. The court apparently believed that any reduction in the amount of benefits paid to employees who were vested would be "[a] plan amendment" to the "vesting schedule": A plan's vesting schedule delineates the timetable by which a participant's benefits will become vested i.e. nonforfeitable. The vesting schedule in the National Shopmen Pension Plan provided that benefits were to be nonforfeitable after 10 years of service. The Trustees contend that because they did not officially change this schedule, the action they took pursuant to § 2.09 was not a vesting schedule amendment. However, because the effect of defendants' actions was to alter the vested benefits of the plaintiffs, the Court holds that these actions do constitute a change in vesting schedule. 563 F.Supp. at 776 (emphasis added). The court quoted with approval from Fentron: "The Fund and its trustees cannot be permitted to do indirectly what would be prohibited if done directly by changing the vesting schedule without changing the vesting provisions of the plan." Fentron, 674 F.2d at 1306. The district court held that the change in benefits was an "amendment" to the vesting schedule, and the plaintiffs were entitled to have their benefits computed under the pre-"amendment" plan — i.e., to receive full credit for their precontribhtory service. The district court also read the § 203 exemptions in light of another ERISA provision. Section 204(g) provides: "The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment described in section [302(c)(8) ]." Application of the "amendment" described in § 302(c)(8) is specifically limited: No amendment described in this paragraph which reduces the accrued benefits of any participant shall take effect unless the plan administrator files a notice with the Secretary [of Labor] notifying him of such amendment and the Sec retary has approved such amendment or, within 90 days after the date on which such notice was filed, failed to disapprove such amendment. No amendment described in this subsection shall be approved by the Secretary unless he determines that such amendment is necessary because of a substantial business hardship (as determined under section [303(b)]) and that waiver under section [303(a)] is unavailable or inadequate. The district court again viewed the benefit reduction resulting from the cancellation of precontributory service credits as an "amendment": It is indisputable that the Trustees' action here decreased the accrued benefits of all members of the plaintiff class. Further, the Court holds, pursuant to the same reasoning employed to find an amendment in the vesting schedule, that this reduction in benefits was the result of a plan "amendment." 563 F.Supp. at 777 (footnote omitted). Since the trustees never, submitted their "amendment" for approval to the Secretary, the district court held the reduction of credits invalid under § 204(g). Just as in its decision under § 203(c)(1)(B), the district court's decision under § 204(g) depends entirely on its conclusion that any reduction in benefits to pension recipients is a "plan amendment." The plaintiffs vigorously support this interpretation. They argue that § 203(a)(3) (E) is not an unqualified exemption that would allow plan trustees to cancel benefits whenever unfunded liability is present, but rather a substantive provision, which may only be carried out through the procedures outlined in § 203(c)(1)(B) and 204(g): That ERISA may permit plans not to count past service credits, and may permit plans to cancel past service credits previously provided, does not answer the question of how those cancellations can be effected____ Sections 203(c)(1)(B) and 204(g) speak to that issue, and establish precise guidelines which must be followed when trustees seek to effect certain substantive changes. Brief of Appellees at 25. The plaintiffs' basic position is that the exemptions listed in § 203(a)(3)—at least, the exemption in subsection (a)(3)(E)—can be exercised only if (1) plan participants are given a choice as to whether they are willing to have their benefits cut, and (2) the Secretary of Labor determines that such cuts are necessary for the survival of the plan. It is clear that the plaintiffs' interpretation would severely circumscribe the ability of a multiemployer fund to cancel such credits, since it is likely that only the benefits of those employees with less than 5 years of service could ever be affected, and then only if necessary to save the Fund from serious financial jeopardy. For several reasons, we reject the plaintiffs' construction of these provisions. B. We begin by examining the plain language of the provisions in question. Not infrequently, the best guide to what a statute means is what it says. The plaintiffs' construction of § 203(c)(1)(B) and 204(g) does violence to the plain language of both sections. Section 203(c)(1)(B) applies only to "plan amendment[s] changing any vesting schedule"; § 204(g) applies only to "amendments] of the plan." In both sections, the word "amendment" is used as a word of limitation. Congress did not state that any change would trigger the two provisions; it stated that any change by amendment would do so. The district court found, and the plaintiffs admit, that there was no "amendment" to the plan in the "technical" sense — i.e., an actual change in the provisions of the plan. True. All that happened was that § 2.09, a provision already incorporated into the plan, was applied. Actions authorized by the plan were carried out by the persons authorized to do so. The plaintiffs' construction would stretch the term "amendment" nearly to the breaking point. Under their construction, reducing any benefits, authorized by the plan, of persons whose rights are vested, would constitute an "amendment." While speculation regarding why Congress chooses specific language is not always fruitful, it should be noted that had Congress meant either subsection to apply to "any reduction in benefits to vested participants," it could easily have said so. The phrases it chose, "[a] plan amendment" which "decrease[s]" benefits or "ehange[es] any vesting schedule," are curious ways of saying "any reduction in benefits." A resort to the legislative history does not help the plaintiffs' argument. Nothing in the history lends any credence to the construction they advocate; what history there is, though not particularly helpful, is consistent with the clear language of the subsection. But we do not simply rely on the plain language of particular subsections in interpreting this statute. As the Supreme Court has noted, ERISA is a "comprehensive and reticulated statute," Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361, 100 S.Ct. 1723, 1726, 64 L.Ed.2d 354 (1980), and each interrelated provision must be read in conjunction with other provisions to determine its meaning. It is important to read each section of this complex statute in its proper context. Analyzing § 203(c)(1)(B) and 204(g) in light of the remainder of ERISA also indicates that the construction of the two sections advocated by the plaintiffs is incorrect. To begin with, the plaintiffs fail to distinguish between the concepts of "vested rights" and "accrued benefits," a distinction drawn by Congress in writing the statute. The two principles are related, but different. An employee is "vested" in a portion of his benefit when he has a nonforfeitable right to a given percentage of his accrued benefit. The "vesting schedule" specifies the time at which an employee obtains his nonforfeitable right to a particular percentage of his accrued benefit. It does not provide any formula or schedule for determining the amount of the accrued benefit. Thus, "vesting" governs when an employee has a right to a pension; "accrued benefit" is used in calculating the amount of the benefit to which the employee is entitled. The distinction between the two terms was recognized by the Supreme Court in Nachman, supra: [T]he term "forfeiture" normally connotes a total loss in consequence of some event rather than a limit on the value of a person's rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in § 203(a)(3) . describes an event— such as death or temporary re-employment — that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of "nonforfeitable" to view it as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect. 446 U.S. at 372-73, 100 S.Ct. at 1731-32 (emphasis added). In its subsequent decision in Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981), the Court reemphasized the difference: [T]he statutory definition of "nonforfeitable" assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, "it is the claim to the benefit, rather than the benefit itself, that must be 'unconditional'and 'legally enforceable against the plan. ' " Id. at 512, 101 S.Ct. at 1900 (emphasis added) (quoting Nachman, supra, 446 U.S. at 371, 100 S.Ct. at 1731). Under the ERI-SA scheme, a reduction in benefits to employees whose right to a pension in some amount remains vested is not a "forfeiture." A reduction in accrued benefits, standing alone, does not affect the right to obtain benefits and thus does not affect vesting. It changes only the amount of benefits a pensioner receives, not his vested status. It cannot be construed as an amendment to the vesting schedule. Section 203(c)(1)(B) is specifically limited to amendments to the vesting schedule. It does not purport to govern all reductions in accrued benefits. Since the reduction in accrued benefits involved in this case does not affect the vested status of any employee, § 203(c)(1)(B) does not require that employees be offered a choice in benefit calculations. Unlike § 203(c)(1)(B), § 204(g) is not limited to vesting schedule amendments. It does apply to amendments which affect only accrued benefits. But § 204(g) does not apply to every reduction in benefits. Congress did not provide: "The accrued benefit of a participant under a plan may not be decreased except as prescribed in section 302(c)(8)." Instead, it provided: "The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment prescribed in section [302(c)(8) ]" (emphasis added). The plaintiffs' argument that any reduction in benefits should be considered a plan amendment would require us to ignore the italicized language in the section. That language is not surplusage. The reason for the limitation is apparent, and is entirely consistent with the remainder of the statutory scheme. Congress's chief purpose in enacting ERISA was to "mak[e] sure that if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it." Nachman, supra, 446 U.S. at 375, 100 S.Ct. at 1733. Plan trustees have fiduciary duties not only to persons like Stewart and Warren, who have retired, but to those who are now paying into the fund and will receive their promised benefits in the future. The trustees' twin obligations — distributing benefits while protecting the fund — must be balanced: The trustees of a pension plan have a fiduciary duty to preserve the financial security of a pension fund and to apply the assets of the fund for the benefit of the employees to the greatest extent possible. We recognize that these respective obligations are often conflicting. Adams v. New Jersey Brewery Employees' Pension Trust Fund, 670 F.2d 387, 397 (3d Cir.1982) (footnote omitted). To give trustees the flexibility necessary for efficient operation of pension funds, Congress has recognized and provided for several situations in which plans can reduce or eliminate benefits to participants by implementing preexisting plan provisions. If Congress had drafted § 204(g) the way the plaintiffs would have us construe it, the subsection would have restricted severely the ability of the trustees to protect the fund in routine situations. In its present form, § 204(g) is specifically limited to actual amendments, not otherwise approved by ERISA, which would change benefit amounts. As such, it is entirely consistent with the remainder of ERISA. Our interpretation also is consistent with the apparent interpretations made by the agencies charged with administering ERI-SA, and with the decisions of other courts which have faced the issue. It does not appear that either the Secretary of Labor (whose approval the plaintiffs claim is vital to Congress's statutory scheme) or the Internal Revenue Service (which is charged with approving or disapproving plans for tax purposes) has challenged the Fund's action in this case. Neither the Secretary nor the Commissioner is claiming that § 203(c)(1)(B) and 204(g) apply to any of the nonforfeitability exceptions under § 203(a)(3). The Secretary has not indicated that he believes that it is his duty to evaluate and approve benefit reductions made under provisions such as § 2.09 of the plan. The Internal Revenue Service has not denied favorable tax treatment to plans which include or exercise precontributory service cancellation clauses. The I.R.S. does not treat a benefit as forfeitable merely because an employee's accrued benefit which results from service with an employer before such employer was required to contribute to the plan is forfeitable on account of the cessation of contributions by the employer of the employee. 26 C.F.R. § 1.411(a)-4(b)(5) (1983). Examples provided in the regulations discuss the limitations on cancellations of precontributory service, and they do not suggest that § 203(c)(1)(B) and 204(g) are applicable. The courts have also interpreted the statute in this manner. In Alessi, supra, the Supreme Court considered pension plan provisions which permitted the fund in question to reduce benefits to a participant by the amount of workers' compensation received by the participants. Just as in this case, the effect of the fund's action in Alessi was to reduce benefits to vested participants, so this would have been — under the plaintiffs' theory — an "amendment" to the plan. The participants in Alessi were not given the chance to keep their pre-"amendment" benefit amounts, nor was the benefit reduction presented to the Secretary of Labor for his approval. But the unanimous Supreme Court held that the fund's action in reducing the benefits did not violate ERISA. Alessi, 451 U.S. at 516-17, 101 S.Ct. at 1902-03. In Harm v. Bay Area Pipe Trades Pension Plan Trust Fund, 701 F.2d 1301 (9th Cir.1983), a pension plan enforced its rule cutting off benefits to a retired worker who took new employment. Under the plaintiffs' theory, this too would be an "amendment" which decreased benefits to an individual whose rights were vested under the plan. Authority to curtail benefits upon reemployment — like authority to cancel precontributory service credits — is found in ERISA § 203(a)(3). Like the plaintiffs in this case and in Alessi, the participant in Harm was not given the option to take his pre-"amendment" benefits, and the Secretary of Labor did not review the fund's decision. Nevertheless, the court held that the fund's denial of benefits was proper. 701 F.2d at 1305-06. Other courts have construed ERISA to permit cancellation of precontributory service when necessary to avoid the dumping of unfunded liability, without suggesting that § 203(c)(1)(B) and 204(g) were implicated. In Central Tool, supra, the district court invalidated the benefit cancellation at issue, but on the ground that the fund had not demonstrated that such cancellation was necessary to avoid the dumping of unfunded liability. The court found "unexceptionable" the goal of "protect[ing] the fund from the dumping of unfunded liability as a result of an employer's termination of participation after past service credits have been granted to its employees." Central Tool, 523 F.Supp. at 816. The court concluded: It remains for the Court to attempt to harmonize the vested status of plaintiff's employees with achievement of defendants' legitimate objective of preserving the fund from unfunded liability. The controlling guideline for effecting this reconciliation is to validate the provision to the maximum extent possible consistently with the constraint that the provisions not cause a divestment of any vested employee. This objective is best achieved by allowing the forfeiture of past service credit, pursuant to the provisions, for benefit accrual purposes, but not for the purpose of determining vested status. Id. at 818 (footnotes omitted). Similarly, the Ninth Circuit in Elser, supra, noting that it "agree[d]" with the holding in Central Tool, found the fund's cancellation of credits to be arbitrary and capricious — the fund presented no evidence of any actuarial reason for its actions — but did not apply § 203(c)(1)(B) and 204(g) to impose additional procedural requirements. The court, after quoting Central Tool on the importance of avoiding unfunded liability, noted that precontributory service could be cancelled to the extent "necessary or reasonable to protect the financial stability of the fund." Elser, 684 F.2d at 658. Finally, the weakness of the plaintiffs' interpretation is demonstrated by its logical consequences. Since the right to cancel precontributory service credits is included in the list of exceptions in § 203(a)(3), the plaintiffs must necessarily maintain that powers granted under that section may only be exercised if § 203(c)(1)(B) and 204(g) are complied with. Under the plaintiffs' theory, for example, a pension fund would have the right to cancel benefits paid to a participant with 5 or more years of service when that participant dies, § 203(a)(3)(A)—but only if (1) the dead participant (or, perhaps, his estate) is given the right to elect to continue receiving full benefits, and (2) the Secretary of Labor finds that the cancellation is necessary to assure the financial soundness of the pension fund. There is no evidence that Congress intended such an unreasonable result. From our review of the provisions of ERISA and the applicable authorities, we conclude that actions which are specifically permitted by ERISA § 203(a)(3), and which are carried out under authority reserved by the pension plan without actual amendment of the plan, are not subject to the procedures outlined in § 203(c)(1)(B) and 204(g). IV. Our conclusion does not dispose of this litigation. It has been held that cancel lations of precontributory service, while permissible, are nevertheless subject to review to ensure that the trustees did not act in an arbitrary and capricious manner in cancelling benefits. Elser, supra, 684 F.2d at 658; Central Tool, 523 F.Supp. at 816. The plaintiffs argued in the alternative in the district court that the trustees acted arbitrarily and capriciously in cancelling the precontributory service credits of Anchor employees. The district court, which decided the case on the basis of § 203(c)(1)(B) and 204(g), did not reach this contention. At oral argument, the Fund's representatives conceded that the case should be remanded to consider whether the Fund's cancellation of credits was arbitrary or capricious. We note, however, that avoiding the dumping of unfunded liability is a permissible goal of multiemployer pension funds. When a fund is obligated to pay out more money than has been paid in, and it is unable to recoup the difference, "[tjhese excess benefits would have to come largely from the stepped-up contributions of current participants." Harm, supra, 701 F.2d at 1305. Thus, to the extent that cancellation is necessary to avoid the dumping of substantial unfunded liability, it is presumptively reasonable. On remand, the district court should evaluate the evidence to determine whether there was a reasonable actuarial basis for the action of the trustees. V. For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. Judgment accordingly. . The National Coordinating Committee for Multiemployer Plans, a group of 140 employee pension plans, has filed a brief as amicus curiae urging reversal of the district court. . 29 U.S.C. § 1002(2), (37)(A) (1982). A "multiemployer plan" is one (i) to which more than one employer is required to contribute, (ii) which is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer, and (iii) which satisfies such other requirements as the Secretary [of Labor] may prescribe by regulation. Id. § 1002(37)(A). . Pensions granted by the Fund are based on two factors: the level of the employer's contribution rate, and the individual employee's total years of service. The Fund provides a schedule by which individual employees can calculate their expected benefits. . This "unfunded liability" results from the system under which multiemployer pension funds collect contributions and calculate benefits. Typically, when a new employer joins a fund, its employees receive precontributory service credits for the years they spent with the employer prior to joining the fund. For example, a particular employee who had worked for the employer for 20 years before the employer joined the fund would immediately receive 20 years of service credit. His pension would be based on 20 years of service even though his employer, at the time it joined, had contributed nothing to pay for that pension. This initial liability is totally unfunded. To pay for this unfunded liability, the pension fund collects on a regular basis from the employer an amount in excess of the actual cost of pension coverage for the contributory service. This excess amount is used over time to amortize the unfunded liability. The unfunded liability gradually is reduced by the stream of employer payments. This continuing stream is necessary to make the system work; when, as in this case, an employer withdraws after a relatively short time, its payments into the fund have not completely reduced the unfunded liability, and the fund is left with liabilities for which it has received no payments. . The district court found that "a significant factual difference between [this case and Fen-tron ] renders the case at bar sufficiently different to demand individual consideration." The court held that "[t]he issues Fentron decided are not . sufficiently similar to satisfy the requirements of collateral estoppel." 563 F.2d at 776 n. 5. .Fentron involved an employer (Fentron) which had joined the Fund in 1971, pursuant to a collective bargaining agreement. When a subsequent collective bargaining agreement expired in 1978, the Fund's trustees refused to take any more contributions from Fentron, and unilaterally cancelled all precontributory service credits of Fentron employees. 674 F.2d at 1302-03. The trustees informed employees that if they left Fentron and joined another employer they would regain all of their lost service credits. Id. at 1303. The employer and the employees together brought suit against the Fund. . See part III infra. . The Fund does not here challenge the result in Fentron. Its procedures for cancelling or reducing benefits apparently have been altered to conform to the decision in that case. . See note 24 infra. . Even if we were convinced that the Fentron decision had reached the issue involved in this case, we would be reluctant to apply collateral estoppel here. Collateral estoppel should not be applied against a party when such application would be unfair. That may be the case as to "unmixed questions of law": Where, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. Montana v. United States, 440 U.S. 147, 162, 99 S.Ct. 970, 978, 59 L.Ed.2d 210 (1979) (quoting United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924)). This principle has been incorporated into the Restatement: Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: (2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or (5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the original action . Restatement (Second) of Judgments § 28 (1982). As we explained previously, we interpret Fentron as consistent with the Ninth Circuit's subsequent decision in Elser. If the plaintiffs were correct in their assertions that Fentron decided the issue involved in this case, we would be forced to find it clearly in conflict with the subsequent Elser decision. If the plaintiffs were correct, then the Fentron decision was plainly repudiated by the same court only months later. In that situation, we think that it would be unfair to the Fund to bind it forever to a decision on a question of law that the issuing court rejected only seven months later. This would be especially true in light of the important interests of the employers and employees who are presently members of the Fund, interests which would be affected adversely by reliance on the plaintiffs' interpretation of Fen-tron. . 29 U.S.C. § 1053 (1982). . Under § 203, a plan meets ERISA's vesting standards if (1) "an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age," § 203(a); (2) "an employee's rights in his accrued benefits derived from his own contributions are nonforfeitable," § 203(a)(1); and (3) the employee has worked a certain' number of years, § 203(a)(2). There are three alternative vesting schedules that a pension plan may select; any one of the three is lawful. A plan may provide that an employee simply becomes 100% vested after 10 years. ERISA § 203(a)(2)(A). Vesting can occur on a graduated scale, however. A plan can provide that an employee becomes 25% vested after 5 years, with the percentage increasing until the employee is 100% vested after 15 years. § 203(a)(2)(B). Another available scale uses the sum of the years of service and the age of the employee to determine the nonforfeitable amount. § 203(a)(2)(C). The Fund in this case opted to permit 100% vesting of benefits after 10 years, under § 203(a)(2)(A). . "A right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that it is not payable if the participant dies (except in the case of a survivor annuity . . . .)" 29 U.S.C. § 1053(a)(3)(A) (1982). . A right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that the payment of benefits is suspended for such period as the employee is employed, subsequent to the commencement of payment of such benefits— (ii) in the case of a multiemployer plan, in the same industry, in the same trade or craft, and the same geographic area covered by the plan, as when such benefits commenced. Id. § 1053(a)(3)(B). . A right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that, in the case of a participant who does not have a nonforfeitable right to at least 50 percent of his accrued benefit derived from employer contributions, such accrued benefit may be forfeited on account of the withdrawal by the participant of any amount attributable to the benefit derived from mandatory contributions.... Id. § 1053(a)(3)(D)(i). Limitations on this exception are spelled out in the remainder of the subsection. .Id. § 1053(a)(3)(E). Subdivision (E) was a subsequent addition to subsection (a)(3). See note 21 infra. . 29 U.S.C. § 1053(c)(1)(B) (1982) (emphasis added). . Id. § 1054(g). . Id. § 1082(c)(8). In determining whether the fund would face "substantial business hardship," the Secretary may look at whether (1) the employer is operating at an economic loss, (2) there is substantial unemployment or underemployment in the trade or business and in the industry concerned, (3) the sales and profits of the industry concerned are depressed or declining, and (4) it is reasonable to expect that the plan will be continued only if the waiver is granted. ERISA § 303(b), 29 U.S.C. § 1083(b) (1982). Under this section, the Secretary can grant permission to amend the benefit amounts only if it is shown that the amendment is necessary to preserve the fund, and if a simple waiver of ERISA's minimum funding standards, ERISA § 302, 29 U.S.C. § 1082 (1982), would not solve the fund's problems. . While employees under these circumstances might (at least conceivably) choose to receive benefits based on the post-"amendment" plan, it is difficult to imagine that rational employees would voluntarily give up their precontributory service credits and accept lower benefits. It seems safe to say that affected employees with 5 or more years of service would almost invariably choose to keep their precontributory service credits, and that hence only the most minor benefit reductions could ever be made, regardless of the necessity involved. . Subsection (a)(3)(E) was added to the remainder of (a)(3) in the 1980 ERISA Amendments. See 94 Stat. 1208, 1292 (1980). The various legislative materials relating to the Amendments discuss § 203(a)(3)(E). The Report of the House Education and Labor Committee on the 1980 ERISA Amendments stated that "a multiemployer plan may, upon withdrawal of an employer, eliminate benefits granted for service before the employer joined the plan." H.R.Rep. No. 869, 96th Cong., 2d Sess. 115 (1980), U.S.Code Cong. & Admin.News 1980, 2918, 2983. At the same time that ERISA was amended, the Internal Revenue Code was amended to conform it to the changes in ERISA. The language of 26 U.S.C. § 411(a)(3)(E) (1982), which is identical to ERISA § 203(a)(3)(E), was discussed in the Report of the House Ways and Means Committee: Under the bill, a multiemployer plan does not fail to meet the vesting requirements of ERISA merely because the plan provides for the forfeiture of accrued benefits attributable to service with a participant's employer before the employer was required to contribute to the plan in the event that the employer ceases making contributions to the plan. H.R.Rep. No. 869, Part II, 96th Cong., 2d Sess. 73 (1980), U.S.Code Cong. & Admin.News 1980, p. 3059. In neither report is this right qualified by reference to any limitations in § 203(c)(1)(B) or 204(g). Since, as noted above, such a limitation would have curtailed drastically the usefulness of subsection (a)(3)(E), that omission is suggestive. It is also significant that the provision in subsection (a)(3)(E) was put in (a)(3), which provides for routine cancellations like death and reemployment. Nothing in the legislative history of those other exceptions to the general vesting rules indicates that Congress intended to have § 203(c)(1)(B) or 204(g) apply. . The statutory definition of "nonforfeitable" is provided in ERISA § 3(19): The term "nonforfeitable" when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan. For purposes of this paragraph, a right to an accrued benefit derived from employer contributions shall not be treated as forfeitable merely because the plan contains a provision described in section [203(a)(3)]. 29 U.S.C. § 1002(19) (1982) (emphasis added). . "The term 'accrued benefit' means — (A) in the case of a defined benefit plan, the individual's accrued benefit determined under the plan and . expressed in the form of an annual benefit commencing at normal retirement age Id. § 1002(23). .Some of the language in Fentron might be construed to imply that cancellation of credits resulting in reduced benefits are forfeitures prohibited by ERISA: "Unlike the credits of vested employees, ERISA does not prohibit the cancellation of Past Service Credits of employees not yet vested under a pension plan." 674 F.2d at 1306 (emphasis added). However, Fentron is a case where, as other language in the opinion points out, all of the employees involved were actually completely divested. Without expressing any opinion on the issue, we assume for purposes of this discussion that the Fentron court was correct in holding that such complete divestiture brought about by implementation of a plan provision is, in effect, an amendment to the vesting schedule. We reject any broader interpretation of the Fentron holding. . See, e.g., ERISA § 203(a)(3)(A) (death of plan participant); 203(a)(3)(B) (reemployment of plan participant); 204(b)(1)(B)(iv), 204(b)(1)(C), 204(b)(1)(G) (integration of other retirement benefits); Alessi, supra, 451 U.S. at 516-17, 101 S.Ct. at 1902-03 (offset of money collected under workers' compensation). See also 29 U.S.C. § 1426 (1982) (benefit reductions for insolvent plans). . This regulation was promulgated under the original version of 26 U.S.C. § 411(a) (1976), prior to enactment of the 1980 ERISA Amendments which added id. § 411(a)(3)(E) and its counterpart, ERISA § 203(a)(3)(E), but it continues without change. . In 26 C.F.R. § 1.414(f)-l (1983), an example is given of how a multiemployer plan could properly reduce precontributory service credits without violating ERISA. In the example, the Service would permit cancellation of precontributory service credits for an employee who had 15 years of precontributory service and 15 years of contributory service, if his employer withdrew from the plan. The I.R.S. found that the plan would not violate ERISA so long as benefits for contributory service are not forfeited: [I]n order for the plan to meet the [nonforfeitability] requirements . the plan must provide for [the employee's] accrued benefit after [the employer] ceased to be a member of the plan to be at least . [the employee's] total accrued benefit less . benefit accrued for service prior to [the employer's] membership in the plan. Id. § 1.414(f)—1(b)(2)(ii) (emphasis added). The regulation does not indicate that, as an additional requirement the employer must comply with the provisions of ERISA relied upon by the plaintiffs. This is an interpretation of the statute that is entitled to considerable force. . See also Baltimore Rebuilders, Inc. v. NLRB, 611 F.2d 1372, 1379-80 (4th Cir.1979), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1113 (1980): We think the challenged provisions [permitting cancellation of precontributory service] evidence an intention to encourage the voluntary continuation of pension coverage on a unit-wide basis. As such, they serve a legitimate business purpose of the Fund to reasonably limit an unfunded liability____ In all, we think automatic cancellation of the credits when contributions cease is a reasonable plan provision which operates fairly to induce the voluntary continuation of pension coverage. . The Elser court did not discuss the language in the Fentron decision suggesting that the two subsections would apply in this situation, see note 24 supra, but the Elser court was fully aware of its earlier decision. Since Elser addressed cancellations like those in this case, while Fentron involved cancellations that divested participants, we believe that our interpretation is fully consistent with that of the Ninth Circuit on this issue. Our interpretation of Elser and Fentron is also consistent with the Ninth Circuit's decision in Harm, supra, involving another § 203(a)(3) exception. . Perhaps recognizing the absurdity of this position, the plaintiffs avoid suggesting that the other § 203(a)(3) exceptions are also governed by the procedures in § 203(c)(1)(B) and 204(g). But they offer no rational basis for treating subsection (a)(3)(E) differently from the other exceptions in subsection (a)(3). To the extent that the plaintiffs argue that a decrease in benefits to vested employees is a plan amendment, we see no reasonable basis for distinguishing them. . To some extent, the unfunded liability problems that pension funds face have been eased by the 1980 ERISA Amendments, which permit pension funds to recover unfunded liability directly from withdrawing employers. (The present case is not covered by these amendments, since Anchor withdrew in 1979.) It is true that the new provisions make it "significantly less likely that forfeiture provisions . will be invoked." Brief for Appellants at 46. But these provisions are useful only to the extent that the withdrawing employer has sufficient assets to cover the unfunded liability. If an employer is insolvent — and insolvency is, of course, a common reason for withdrawing from a fund — the pension fund will be in the same position as the Fund in this case. Thus, there will certainly be situations, even under the new provisions, where unfunded liability can be minimized only through cancellation of precontributory service credits. . The plaintiffs also argued in the alternative that the cancellation of service credits violated other provisions of the plan itself. They rely on § 7.09 of the plan: The benefits to which a Participant is entitled under the terms of this Plan upon his attainment of Normal Retirement Age are Vested (nonforfeitable), subject, however, to retroactive amendment made within the limitations of Section 411(a)(3)(C) of the Internal Revenue Code and Section 302(c)(8) of ERISA. (J.A. 193) (emphasis added). The plaintiffs argue that "once the participant has become eligible for a certain amount of benefits, the Trustees cannot unilaterally forfeit any of those benefits without violating [the plan's] nonforfeitability provision" (J.A. 301). But cancellations of precontributory service credits upon employer withdrawal do not violate ERISA's nonforfeitability provisions, and the plan specifically provides for cancellation of such credits when an employer withdraws. Section 7.09 provides that only benefits to which a participant is "entitled under the terms of [the] plan" are nonforfeitable. Since § 2.09 specifically removes the entitlement of participants to benefits for precontributory service with a withdrawing employer, participants are not "entitled" to those benefits under the plan. There is no violation of the plan's nonforfeitability provision. . Since we decide that § 203(c)(1)(B) and 204(g) do not apply at all to benefit accrual changes made under the procedures outlined in § 203(a)(3), we do not reach the district court's holding that the protections of § 203(c)(1)(B) do not generally apply to persons who retired before January 1, 1976, but that § 204(g) does apply to such persons. Stewart, 563 F.2d at 777.

19 Cl. Ct. 621

ORDER MEROW, Judge. This vaccine claim matter comes before the court on petitioner's objection to the Report and Recommendation of the Special Master. The objection is addressed to the attorney's fees awarded. Upon a review of the record in this matter, it is concluded that the petitioner has not established any valid basis on which to overturn the Special Master's conclusion as to the appropriate hourly rate to be utilized for the attorney work performed in this uncontested litigation. The affidavits submitted to the Special Master as to attorney fee rates appropriate for contested personal injury and wrongful death cases have no relevant bearing on the compensation which is reasonable for this particular National Vaccine Injury Compensation Program matter. The record shows that what was involved in the present case was, essentially, assembling the necessary records and the presentation of these records, plus uncontested testimony by the mother of the child whose death was caused by the vaccine, and by Dr. Marcel Kinsboume, a qualified expert. While the record shows petitioner's counsel to be eminently qualified to conduct complicated personal injury and wrongful death litigation, this high level of expertise was not required for, or displayed in, this relatively simple vaccine claim matter. In fact, counsel noted in his opening statement that this claim constituted a matter where liability should have been promptly conceded — had there been an opposing counsel to concede it (Tr. 6). The attorney fee should be reasonable for the nature of the work actually performed, and the Special Master's rate determination is considered to be appropriate in this regard. This is particularly the case in the circumstance where, in most areas of complex Claims Court litigation under 28 U.S.C. § 1491, a prevailing party in contested litigation is limited to a claim for $75 per hour in attorney fees, plus a possible cost of living adjustment. See 28 U.S.C. § 2412(d); Pusateri v. Secretary of DHHS, 18 Cl. Ct. 828, 830 (1989). In reviewing the record, it was noted that several items allowed by the Special Master are not permitted by 42 U.S.C. § 300aa-15(e)(l), which states: (1) The judgment of the United States Claims Court shall include an amount to cover— (A) reasonable attorneys' fees, and (B) other costs, incurred in any proceeding on such petition. In Siegfried v. Secretary of DHHS, 19 Cl.Ct. 323 (1990), fees and expenses concerning the administration of the estate of the petitioners' daughter in that matter, who died as a result of a DPT (diphtheria-pertussis-tetanus) inoculation, were disallowed because they were not incurred in any proceeding on the petition filed in the Claims Court. Certain attorney fees and expenses claimed in the present matter were incurred with respect to the administration of the estate of the petitioner's child. The petitioner testified that an attorney, John Blackburn, was retained to obtain Letters of Special Administration for her from the Circuit Court, First Judicial District, County of Yankton, South Dakota (Tr. 109-110). Mr. Blackburn's fee was $256.03. In addition, the petitioner's fee claim includes one hour devoted to estate preparation with "atty. Blackburn" and an entry for 2.50 hrs of paralegal time on October 19, 1989 which includes, in part, the description "conversation w/attorney Blackburn, Re: Estate." Accordingly, removing one hour of the attorney time allowed by the Special Master, one-half hour of paralegal time (as approximating the time spent on estate administration matters with Mr. Blackburn) and Mr. Blackburn's fee of $256.03, results in a slight reduction of the Special Master's award of fees and expenses as follows: Item Hours Rate Amount paralegal 16.1 $ 65 hr $1,046.50 attorney 32.86 $140 hr $4,600.40 expenses $3,697.65 Total: $9,344.55 In addition, it is concluded that compensation should include an additional five hours ($700) as the attorney time considered to be reasonably required to prepare objections on the attorney fee issue, plus one-half hour of paralegal time ($32.50). Accordingly, it is ORDERED: (1) Except to the extent modified herein, the report and recommendations of the Special Master are adopted; (2) Judgment shall be entered in favor of petitioner for $250,000 plus $10,077.05 in reasonable attorney fees and expenses, with no other costs to be assessed. . As no designation was received under the footnote on page 1 of the report filed December 18, 1989 and as no additional information is included in this order, this matter shall now be disclosed for public access.

214 Ct. Cl. 789

"Plaintiff has filed a complaint reading in its entirety, after the caption, as follows: COMPLAINT CIVIL RIGHTS. RACIAL DISCRIMINATION. DEMAND $5,000,000 MENTAL HARRASSMENT, AND INCREASE IN COMPENSATION. I, Lloyd R. Jennings, have repeatedly requested an appeals hearing on an increase from $707 to $1700 for injury to back, ear, nose, and throat, and Alcoholism. Also reimbursement for money and time spent for education for which I received a Doctor of Philosophy in London, England. My educational benefits were violated under the Vocational Rehabilitation Act. I filed most recently with the Veterans Board of Appeals, 810 Vermont Ave., N.W., Washington, D.C. in August, 1976 and was told it would take 4 to 6 weeks. To this date no action has been taken. Plaintiff demands physical examination, and full compensation based on all issues contained herein. December 9, 1976 /s/ Lloyd R. Jennings Date Attorney for Plaintiff "Defendant moves to dismiss, or in the alternative, for summary judgment. The plaintiff has filed an 'opposition' which adds interesting details of his supposed persecution, but nothing relevant herein. "Defendant, commendably, takes the trouble to inform the court of plaintiffs mental disability (schizophrenia, paranoid type, rated 100 percent by the Veterans Administration (VA) since 1969), his service in the U. S. Air Force, his claims for various kinds of benefits, and his prior suits which, according to defendant, raise the bar of res judicata. Apparently he is currently receiving benefits which he wishes increased. "It would be sufficient to dispose of this case to state that the complaint, as filed, alleges no cause of action within the limited jurisdiction of this court. If, however, aided by defendant's exegesis, we conclude that plaintiff is suing for veterans benefits wrongfully denied him by the VA, as he contends, Congress has made VA decisions granting or denying benefits to veterans or their dependants or survivors, final and not reviewable in this or any other court. 38 U.S.C. § 211(a). It is thus unnecessary to determine whether the grievances so cloudily displayed in the complaint are newly accrued or are those that were the subjects of his former lawsuits. "Accordingly, without oral argument, defendant's motion for summary judgment is granted and the complaint is dismissed."

464 U.S. 839

C. A. 4th Cir. Certiorari denied.

10 Wall. 553

Mr. Justice NELSON delivered the opinion of the court. By the second section of the third article of the Constitu-' tion it is ordained that the judicial power shall extend "to all controversies between a State and the citizens of another State." The second clause of this section provides "that in all cases affecting ambassadors, &c., and those in which a State shall be a. party, the Supreme Court shall have original jurisdiction. . . In all other cases before mentioned it shall have appellate jurisdiction." This second clause distributes the jurisdiction conferred upon the Supreme Court in the previous one into original and appellate jurisdiction; but does not profess to confer any. • • The thirteenth section of the Judiciary Act, which provides for the jurisdiction of this court, accords with this construction. . Á State, therefore, may bring a suit, by virtue of its original jurisdiction, against a citizen of another State, but not against one of her own. And the.question in this.case is whether it is sufficiently disclosed in the declaration that this suit is brought against a citizen of California. And this turns upon another question, and that is, whether the averment there imports that the defendant is a corporation created by the laws of that State; for, unless it is, it does not partake of the character of a citizen within the meaning of the cases on this subject. The court is of opinion that this averment is insufficient to establish that the defendant is a California corporation. It may mean that the defendant is a corporation doing business in that State by its agent; but not that it had been incorporated by the laws of the State. It would have been very easy t.o have made the fact clear by averment, aud, being a jurisdictional fact, it should not have been left in doubt. Indeed, it was admitted in the argument that the defendant was a Pennsylvania corporation, and the jurisdiction sought to be sustained by a suit against this agency. We have already shown that this" is unavailable to support the jurisdiction. Motion granted, and the Writ dismissed. Quoted supra. Marshall v. The Baltimore and Ohio R. R. Co., 16 Howard, 314, and cases there cited.

528 U.S. 921

Ct. App. D. C. Certiorari denied.

544 U.S. 953

C. A. 3d Cir. Certiorari denied.

550 U.S. 233

Justice Stevens delivered the opinion of the Court. Petitioner Jalil Abdul-Kabir, formerly known as Ted Calvin Cole, contends that there is a reasonable likelihood that the trial judge's instructions to the Texas jury that sentenced him to death prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. He further contends that the judgment of the Texas Court of Criminal Appeals (CCA) denying his application for postconviction relief on November 24, 1999, misapplied the law as clearly established by earlier decisions of this Court, thereby warranting relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2254. We agree with both contentions. Although the relevant state-court judgment for purposes of our review under AEDPA is that adjudicating the merits of Cole's state habeas application, in which these claims were properly raised, we are persuaded that the same result would be dictated by those cases decided before the state trial court entered its judgment affirming Cole's death sentence on September 26, 1990. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. I In December 1987, Cole, his stepbrother Michael Hickey, and Michael's wife, Kelly, decided to rob and kill Kelly's grandfather, Raymond Richardson, to obtain some cash. Two days later they did so. Cole strangled Richardson with a dog leash; the group then searched the house and found $20 that they used to purchase beer and food. The next day, Michael and Kelly surrendered to the police and confessed. The police then arrested Cole who also confessed. Cole was tried by a jury and convicted of capital murder. After a sentencing hearing, the jury was asked to answer two special issues:. "Was the conduct of the defendant, TED CALVIN COLE, that caused the death of the deceased, RAYMOND C. RICHARDSON, committed deliberately and with the reasonable expectation that the death of the deceased or another would result? "Is there a probability that the defendant, TED CALVIN COLE, would commit criminal acts of violence that would constitute a continuing threat to society?" App. 127,128. The trial judge instructed the jury to take into consideration evidence presented at the guilt phase as well as the sentencing phase of the trial but made no reference to mitigating evidence. Under the provisions of the Texas criminal code, the jury's affirmative answers to these two special issues required the judge to impose a death sentence. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 2006). At the sentencing hearing, the State introduced evidence that Cole pleaded guilty to an earlier murder when he was only 16. Shortly after being released on parole, Cole pleaded guilty to charges of aggravated sexual assault on two boys and was sentenced to 15 more years in prison. As evidence of Cole's propensity for future dangerousness, the State introduced Cole's diary which, according to the State's expert psychiatrist, Dr. Richard Coons, revealed a compulsive attraction to young boys and an obsession with criminal activity. Dr. Coons described Cole as a sociopath who lacked remorse and would not profit or learn from his experiences. In response, Cole presented two categories of mitigating evidence. The first consisted of testimony from his mother and his aunt, who described his unhappy childhood. Cole's parents lived together "off and on" for 10 years, over the course of which they had two children, Cole, and his younger sister, Carla. App. 35. Shortly after Cole was born, his father was arrested for robbing a liquor store. Cole's father deserted the family several times, abandoning the family completely before Cole was five years old. On the last occasion that Cole saw his father, he dropped Cole off a block from where he thought Cole's mother lived, told Cole to "go find her," and drove off. Id., at 42. Cole had no contact with his father during the next 10 years. Ibid. After Cole's father left, his mother found herself unable to care for Cole and his sister and took the children to live with her parents in Oklahoma. Cole's grandparents were both alcoholics — Cole's mother was herself a self-described "drunk"— and lived miles away from other children. Eventually, because Cole's grandparents did not want their daughter or her children living with them, Cole's mother placed him in a church-run children's home, although she kept her daughter with her. Over the next five years Cole's mother visited him only twice. Cole's aunt, who visited him on holidays, testified that Cole seemed incapable of expressing any emotion and that his father never visited him at all. The second category of mitigating evidence came from two expert witnesses — a psychologist and the former chief mental health officer for the Texas Department of Corrections— who discussed the consequences of Cole's childhood neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to 10 hours interviewing Cole and administering an "extensive battery of psychological tests." Id., at 63. He testified that Cole had "real problems with impulse control" apparently resulting from "central nervous damage" combined with "all the other factors of [his] background." Id., at 69. He also testified that Cole had likely been depressed for much of his life, that he had a "painful" background, and that he had "never felt loved and worthwhile in his life." Id., at 73,86. Providing an analogy for Cole's early development, Dr. Wright stated that "the manufacturing process [had] botched the raw material horribly." Id., at 73. When specifically asked about future dangerousness, Dr. Wright acknowledged that "if Ted were released today on the street, there's a much greater probability of dangerous behavior than with the rest of us." Id., at 74. Although he acknowledged the possibility of change or "burn out," he admitted that Cole would likely pose a threat of future dangerousness until "years from now." Ibid. Except for his prediction that Cole would change as he grew older, Dr. Wright's testimony did not contradict the State's claim that Cole was a dangerous person, but instead sought to provide an explanation for his behavior that might reduce his moral culpability. Dr. Wendell Dickerson, a psychologist who had not previously examined Cole, observed that it was difficult to predict future dangerousness, but that "violent conduct is predominantly, overwhelmingly the province of the young" with the risk of violence becoming rare as people grow older. Id., at 95. On cross-examination, in response to a hypothetical question about a person with Cole's character and history, Dr. Dickerson acknowledged that he would be "alarmed" about the future conduct of such a person because "yes, there absolutely is a probability that they would commit... future acts of violence." Id., at 113. In sum, the strength of Cole's mitigating evidence was not its potential to contest his immediate dangerousness, to which end the experts' testimony was at least as harmful as it was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control — namely, neurological damage and childhood neglect and abandonment. It was these latter considerations, however, that the prosecutor discouraged jurors from taking into account when formulating their answers to the special issues. During the voir dire, the prosecutor advised the jurors that they had a duty to answer the special issues based on the facts, and the extent to which such facts objectively supported findings of deliberateness and future dangerousness, rather than their views about what might be an appropriate punishment for this particular defendant. For example, juror Beeson was asked: "[I]f a person had a bad upbringing, but looking at those special issues, you felt that they [sic] met the standards regarding deliberateness and being a continuing threat to society, could you still vote 'yes,' even though you felt like maybe they'd [sic] had a rough time as a kid? If you felt that the facts brought to you by the prosecution warranted a 'yes' answer, could you put that out of your mind and just go by the facts? "[T]hat would not keep you from answering 'yes,' just because a person had a poor upbringing, would it?" XI Voir Dire Statement of Facts filed in No. CR88-G043-A (Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p. 1588. The prosecutor began his final closing argument with a reminder to the jury that during the voir dire they had "promised the State that, if it met its burden of proof," they would answer "yes" to both special issues. App. 145. The trial judge refused to give any of several instructions requested by Cole that would have authorized a negative answer to either of the special issues on the basis of "any evidence which, in [the jury's] opinion, mitigate[d] against the imposition of the Death Penalty, including any aspect of the Defendant's character or record." Id., at 115; see also id., at 117-124. Ultimately, the jurors answered both issues in the affirmative, and Cole was sentenced to death. On direct appeal, the sole issue raised by Cole was that the evidence was insufficient to support the jury's verdict. The CCA rejected Cole's claim and affirmed the judgment of the trial court on September 26,1990. 11 On March 2, 1992, the lawyer who then represented Cole filed an application for a writ of habeas corpus in the Texas trial court, alleging 21 claims of error. Counsel later with drew, and after delays caused in part by a letter from Cole to the trial judge stating that he wished to withdraw his "appeal," the judge ultimately "had petitioner bench warranted" to a hearing on September 4,1998. Id., at 152-153. During that hearing, Cole advised the court that he wished to proceed with his habeas proceedings and to have the CCA appoint counsel to represent him. Without counsel having been appointed to represent Cole, and without conducting an evidentiary hearing, the trial court entered its findings and conclusions recommending denial of the application. Three of Cole's 21 claims related to the jury's inability to consider mitigating evidence. The trial judge rejected the first — "that his mitigating evidence was not able to be properly considered and given effect by the jury under the special issues," id., at 157 — because he concluded that the record, and "especially" the testimony of the two expert witnesses, "provide[d] a basis for the jury to sufficiently consider the mitigating evidence offered by petitioner," id., at 161. With respect to Cole's second claim, the judge agreed that appellate counsel had been ineffective for failing to assign error based on "the trial court's failure to instruct the jury on mitigating evidence as contemplated by the Pendry [sic] decision." Id., at 166. He nevertheless found that the result on appeal would have been the same had the point been raised. Ibid. On the third claim relating to mitigating evidence, the judge rejected Cole's argument that the trial court's failure to specifically instruct the jury to consider mitigating evidence and offer a definition of "mitigating" was error. Id., at 173. Over the dissent of two members of the court, and after adopting the trial court's findings of fact and conclusions of law with only minor changes, the CCA denied Cole's application for state collateral relief. Ex parte Cole, No. 41,673-01 (Nov. 24, 1999) (per curiam), App. 178-179. Ill After the Federal District Court granted Cole's motion for the appointment of counsel, he filed a timely petition for a federal writ of habeas corpus pursuant to 28 U. S. C. § 2254. His principal claim then, as it is now, was that the sentencing jury "was unable to consider and give effect to the mitigating evidence in his case," in violation of the Constitution. Cole v. Johnson, Civ. Action No. 6:00-CV-014-C (ND Tex., Mar. 6, 2001), p. 5, App. 184. In its opinion denying relief, the District Court began by summarizing Cole's mitigating evidence, highlighting his "destructive family background." Ibid. The court then correctly described our decision in Penry I, 492 U. S. 302 (1989), in these words: "In [Penry] the Supreme Court found that when the defendant places mitigating evidence before the jury, Texas juries must be given instructions which allow the jury to give effect to that mitigating evidence and to express its reasoned moral response to that evidence in determining whether to impose the death penalty." Civ. Action No. 6:00-CV-014-C, at 8-9, App. 188. The court next noted that the Fifth Circuit had formulated its own analysis for evaluating Penry claims. Under that analysis, for mitigating evidence to be constitutionally relevant, it "must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own,... and (2) that the criminal act was attributable to this severe permanent condition" Civ. Action No. 6:00— CV-014-C, at 9, App. 189 (quoting Davis v. Scott, 51 F. 3d 457, 460-461 (CA5 1995); internal quotation marks omitted; emphasis added). Ultimately, Cole's inability to show a "nexus" between his troubled family background and his commission of capital murder doomed his Penry claim. Civ. Action No. 6:00-CV-014-C, at 13, App. 193. The Court of Appeals denied Cole's application for a certificate of appealability (COA), Cole v. Dretke, 99 Fed. Appx. 523 (CA5 2004), holding that "reasonable jurists would not debate the district court's conclusion that Cole's evidence was not constitutionally relevant mitigating evidence," Cole v. Dretke, 418 F. 3d 494,498 (CA5 2005). Shortly thereafter, however, we held that the Fifth Circuit's "screening test" for determining the "'constitutional relevance'" of mitigating evidence had "no foundation in the decisions of this Court." Tennard v. Dretke, 542 U. S. 274, 284 (2004). Accordingly, we vacated its order denying a COA in this case and remanded for further proceedings. Abdul-Kabir v. Dretke, 543 U. S. 985 (2004). On remand, the Court of Appeals reviewed Cole's Penry claim on the merits and affirmed the District Court's judgment denying the writ. Focusing primarily on the testimony of petitioner's two experts rather than that of his mother and his aunt, the Court of Appeals reviewed our recent decisions and concluded "that the Texas special issues allowed the jury to give 'full consideration and full effect' to the mitigating evidence that Cole presented at the punishment phase of his trial." 418 F. 3d, at 511. With two judges dissenting, the court denied the petition for rehearing en banc. We consolidated this case with Brewer v. Quarterman, post, p. 286, and granted certiorari, 549 U. S. 974 (2006). IV Because Cole filed his federal habeas petition after the effective date of AEDPA, the provisions of that Act govern the scope of our review. We must therefore ask whether the CCA's adjudication of Cole's claim on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). We conclude that it did. A careful review of our jurisprudence in this area makes clear that well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. Three of the five cases decided on the same day in 1976 — Woodson v. North Carolina, 428 U. S. 280, Proffitt v. Florida, 428 U. S. 242, and Jurek v. Texas, 428 U. S. 262 — identified the background principles we would apply in later cases to evaluate specific rules inhibiting the jury's ability to give meaningful effect to such mitigating evidence. In Woodson v. North Carolina, we invalidated a statute that made death the mandatory sentence for all persons convicted of first-degree murder. One of the statute's constitutional shortcomings was its "failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." 428 U. S., at 303 (plurality opinion). In Proffitt v. Florida and Jurek v. Texas, the joint opinions rejected facial challenges to the sentencing statutes enacted in Florida and Texas, assuming in both cases that provisions allowing for the unrestricted admissibility of mitigating evidence would ensure that a sentencing jury had adequate guidance in performing its sentencing function. As a majority of the Court later acknowledged, our holding in Jurek did not preclude the possibility that the Texas sentencing statute might be found unconstitutional as applied in a particular case. See n. 15, infra. Two years later, in Lockett v. Ohio, 438 U. S. 586 (1978), a plurality concluded "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defend ant proffers as a basis for a sentence less than death." Id., at 604 (footnote omitted). Because Ohio's death penalty statute was inconsistent with this principle, it was declared unconstitutional. The plurality noted the possible tension between a holding that the Ohio statute was invalid and our decisions in Proffitt and Jurek upholding the Florida and Texas statutes, but distinguished those cases because neither statute "clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor." 438 U. S., at 607. While Chief Justice Burger's opinion in Lockett was joined by only three other Justices, the rule it announced was endorsed and broadened in our subsequent decisions in Ed-dings v. Oklahoma, 455 U. S. 104 (1982), and Skipper v. South Carolina, 476 U. S. 1 (1986). In those cases, we emphasized the severity of imposing a death sentence and that "the sentencer in capital cases must be permitted to consider any relevant mitigating factor." Eddings, 455 U. S., at 112 (emphasis added). In the wake of our decision in Lockett, Ohio amended its capital sentencing statute to give effect to Lockett's holding. Neither Florida nor Texas did so, however, until after our unanimous decision in Hitchcock v. Dugger, 481 U. S. 393 (1987), unequivocally confirmed the settled quality of the Lockett rule. As Justice Scalia's opinion for the Court explained, the defendant had introduced some rather atypical mitigating evidence that was not expressly authorized by the Florida statute: "In the sentencing phase of this case, petitioner's counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers." 481 U. S., at 397. As the opinion further explained, the Florida courts had construed the state statute to preclude consideration of mitigating factors unmentioned in the statute. Accordingly, despite our earlier decision in Proffitt upholding the statute against a facial challenge, it was necessary to set aside Hitchcock's death sentence. We explained: "We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant's troubled family history and emotional disturbance)." 481 U. S., at 398-399. Of course, our reference to "exclusion" of the evidence did not refer to its admissibility, but rather to its exclusion from meaningful consideration by the jury. Had Jurek and Proffitt truly stood for the proposition that the mere availability of relevant mitigating evidence was sufficient to satisfy the Constitution's requirements, Hitchcock could never have been decided as it was. In the year following our decision in Hitchcock, we made clear that sentencing under the Texas statute, like that under the Florida statute, must accord with the Lockett rule. In Franklin v. Lynaugh, 487 U. S. 164, 172, 177, 183 (1988), the plurality rejected the claim that the judge's instructions did not allow the jury to give adequate weight to whatever " 'residual doubts' " it may have had concerning the defendant's guilt, or to evidence of the petitioner's good behavior while in prison. That particular holding is unremarkable because we have never held that capital defendants have an Eighth Amendment right to present "residual doubt" evidence at sentencing, see Oregon v. Guzek, 546 U. S. 517, 523-527 (2006), and in most cases evidence of good behavior in prison is primarily, if not exclusively, relevant to the issue of future dangerousness. What makes Franklin significant, however, is the separate opinion of Justice O'Connor, and particularly those portions of her opinion expressing the views of five Justices, see infra, at 253, and n. 15. After summarizing the cases that clarified Jurek's holding, she wrote: "In my view, the principle underlying Lockett, Ed-dings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. " '[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.... Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.' California v. Brown, 479 U. S. 538, 545 (1987) (O'Connor, J., concurring) (emphasis in original). "In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration. "Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its 'reasoned moral response' to that evidence." 487 U. S., at 184-185 (opinion concurring in judgment) (emphasis added). Justice O'Connor's opinion for the Court in Penry I endorsed the views she had expressed in Franklin and unques tionably governs the facts of this ease. Penry contended that his mitigating evidence of mental retardation and an abusive childhood provided a basis for a sentence of life imprisonment rather than death and that the jury should have been instructed that it could consider that evidence when making its sentencing decision. In response to that contention, our opinion first held that Penry was not asking us to make new law because he was relying on a rule that was "dictated" by earlier cases, see n. 10, supra, and explained why Justice O'Connor's separate opinion in Franklin correctly defined the relevant rule of law. In Franklin, we noted, "both the concurrence and the dissent stressed that 'the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration' in imposing sentence." 492 U. S., at 321 (citing Franklin, 487 U. S., at 185 (O'Connor, J., concurring in judgment); id., at 199 (Stevens, J., dissenting)). Applying that standard, we held that neither the "deliberateness" nor the "future dangerousness" special issue provided the jury with a meaningful opportunity to give effect to Penry's mitigating evidence. With respect to the former, we explained: "In the absence of jury instructions defining 'deliberately' in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime 'deliberately.' Thus, we cannot be sure that the jury's answer to the first special issue reflected a 'reasoned moral response' to Penry's mitigating evidence." 492 U. S., at 323. With respect to the future dangerousness issue, we emphasized the fact that Penry's evidence of mental retardation was relevant only as an aggravating factor. Id., at 323-324. More broadly, we noted that the evidence of Penry's mental retardation and childhood abuse functioned as a "two-edged sword," because it "may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." Id., at 324. We therefore held that, in the absence of an appropriate instruction directing the "jury to consider fully" mitigating evidence as it bears on the extent to which a defendant is undeserving of a death sentence, "we cannot be sure" that it did so. Id., at 323. As our discussion of the deliberateness issue demonstrates, we did not limit our holding in Penry I to mitigating evidence that can only be viewed as aggravating. When the evidence proffered is double edged, or is as likely to be viewed as aggravating as it is as mitigating, the statute most obviously fails to provide for adequate consideration of such evidence. The former special issues (as composed at the time of both Penry's and Cole's sentencing proceedings) provided an adequate vehicle for the evaluation of mitigating evidence offered to disprove deliberateness or future dangerousness. As Judge Reavley noted in his opinion for the Court of Appeals in Penry I, however, they did not tell the jury as to what "to do if it decided that Penry, because of retardation, arrested emotional development and a troubled youth, should not be executed." Id., at 324 (internal quotation marks omitted). V In recommending denial of Cole's application for collateral relief, the Texas trial judge did not analyze Penry I itself. Under the framework set forth in Penry I, the testimony of Cole's mother and aunt, as well as the portions of the expert testimony suggesting that his dangerous character may have been the result of his rough childhood and possible neurological damage, were not relevant to either of the special^ ver diet questions, except, possibly, as evidence supporting the State's argument that Cole would be dangerous in the future. This would not satisfy the requirement of Penry I, however, that the evidence be permitted its mitigating force beyond the scope of the special issues. Therefore, it would have followed that those questions failed to provide the jury with a vehicle for expressing its "reasoned moral response" to that evidence. Instead of relying on Penry I, the trial judge relied on three later Texas cases and on our opinion in Graham v. Collins, 506 U. S. 461 (1993), as having held that nine different categories of mitigating evidence — including a tioubled family background, bipolar disorder, low IQ, substance abuse, paranoid personality disorder, and child abuse — were sufficiently considered under the Texas special issues. App. 159-160. Applying those cases, the judge defined the legal issue "whether the mitigating evidence can be sufficiently considered" as one that "must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given." Id., at 160. As we have noted, in endorsing this formulation of the issue, neither the trial judge nor the CCA had the benefit of any input from counsel representing petitioner. See Part II, supra. In our view, denying relief on the basis of that formulation of the issue, while ignoring the fundamental principles established by our most relevant precedents, resulted in a decision that was both "contrary to" and "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d). The state court's primary reliance on Graham, to the exclusion of our other cases in this line of jurisprudence, was misguided. In Graham, we held that granting collateral relief to a defendant who had been sentenced to death in 1984 would require the announcement of a new rule of constitutional law in contravention of Teague v. Lane, 489 U. S. 288 (1989). In reaching that conclusion we relied heavily on the fact that in 1984 it was reasonable for judges to rely on the interpretation of Jurek that the plurality had espoused in Franklin. See 506 U. S., at 468-472; see also n. 15, supra. But as we have explained, in both Franklin and Penry I, a majority of the Court ultimately rejected the plurality's interpretation of Jurek. Neither Franklin nor Penry I was inconsistent with Graham's narrow holding, but they do suggest that our later decisions — including Johnson v. Texas, 509 U. S. 350 (1993), in which we refused to adopt the rule that Graham sought — are of more relevance to Cole's case than Graham. The relevance of those cases lies not in their results — in several instances, we concluded, after applying the relevant law, that the special issues provided for adequate consideration of the defendant's mitigating evi dence — but in their failure to disturb the basic legal principle that continues to govern such cases: The jury must have a "meaningful basis to consider the relevant mitigating qualities" of the defendant's proffered evidence. Johnson, 509 U. S., at 869; see also Graham, 506 U. S., at 474 (explaining that Penry was entitled to additional instructions "[b]eeause it was impossible [for the jury] to give meaningful mitigating effect to Penry's evidence by way of answering the special issues"). Before turning to those more recent cases, it is appropriate to identify the reasons why the CCA's ruling was not a reasonable application of Penry I itself. First, the ruling ignored the fact that even though Cole's mitigating evidence may not have been as persuasive as Penry's, it was relevant to the question of Cole's moral culpability for precisely the same reason as Penry's. Like Penry's evidence, Cole's evidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence. Second, the judge's assumption that it would be appropriate to look at "other testimony in the record" to determine whether the jury could give mitigating effect to the testimony of Cole's mother and aunt is neither reasonable nor supported by the Penry opinion. App. 160. Third, the fact that the jury could give mitigating effect to some of the experts' testimony, namely, then-predictions that Cole could be expected to become less dangerous as he aged, provides no support for the conclusion that the jury understood it could give such effect to other portions of the experts' testimony or that of other witnesses. In sum, the judge ignored our entire line of cases establishing the importance of allowing juries to give meaningful effect to any mitigating evidence providing a basis for a sentence of life rather than death. His recommendation to the CCA was therefore unsupported by either the text or the reasoning in Penry I. VI The same principles originally set forth in earlier cases such as Lockett and Eddings have been articulated explicitly by our later cases, which explained that the jury must be permitted to "consider fully" such mitigating evidence and that such consideration "would be meaningless" unless the jury not only had such evidence available to it, but also was permitted to give that evidence meaningful, mitigating effect in imposing the ultimate sentence. Penry I, 492 U. S., at 321, 323 (internal quotation marks omitted); Graham, 506 U. S., at 475 (acknowledging that a "constitutional defect" has occurred not only when a jury is "precluded from even considering certain types of mitigating evidence," but also when "the defendant's evidence [i]s placed before the sentencer but the sentencer ha[s] no reliable means of giving mitigating effect to that evidence"). Four of our more recent cases lend support to the conclusion that the CCA's decision was unsupported by either the text or the reasoning of Penry I. In Johnson v. Texas, we held that the Texas special issues allowed adequate consideration of the petitioner's youth as a mitigating circumstance. Indeed, we thought it "strainfed] credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach" because its relevance was so obvious. 509 U. S., at 368. There is of course a vast difference between youth — a universally applicable mitigating circumstance that every juror has experienced and which necessarily is transient — and the particularized childhood experiences of abuse and neglect that Penry I and Cole described — which presumably most jurors have never experienced and which affect each individual in a distinct manner. Evidence of youth, moreover, has special relevance to the question of future dangerousness. A critical assumption motivating the Court's decision in Johnson was that juries would in fact be able to give mitigating effect to the evidence, albeit within the confines of the special issues. See 509 U. S., at 370 ("If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness"). Prosecutors in some subsequent cases, however, have undermined this assumption, taking pains to convince jurors that the law compels them to disregard the force of evidence offered in mitigation. Cole's prosecution is illustrative: The State made jurors "promise" they would look only at the questions posed by the special issues, which, according to the prosecutor, required a juror to "put . . . out of [his] mind" Cole's mitigating evidence and "just go by the facts." Supra, at 242. Arguments like , these are at odds with the Court's understanding in Johnson that juries could and would reach mitigating evidence proffered by a defendant. Nothing in Johnson forecloses relief in these circumstances. See 509 U. S., at 369 ("Penry remains the law and must be given a fair reading"). This conclusion derives further support from the fact that, in Johnson, the Court understood that the defendant's evidence of youth — including testimony from his father that "his son's actions were due in large part to his youth," id., at 368, and counsel's corresponding arguments that the defendant could change as he grew older — was "readily comprehended as a mitigating factor," id., at 369, in the context of the special issues. The evidence offered in this case, however, as well as that offered by the petitioner in Brewer, post, at 289-290, and n. 1, is closer in nature to that offered by the defendant in Penry I than that at issue in Johnson. While the consideration of the defendant's mitigating evidence of youth in Johnson could easily have directed jurors toward a "no" answer with regard to the question of future dangerousness, a juror considering Cole's evidence of childhood neglect and abandonment and possible neurological damage or Brewer's evidence of mental illness, substance abuse, and a troubled childhood could feel compelled to provide a "yes" answer to the same question, finding himself without a means for giving meaningful effect to the mitigating qualities of such evidence. In such a case, there is a reasonable likelihood that the special issues would preclude that juror from giving meaningful consideration to such mitigating evidence, as required by Penry I. See Johnson, 509 U. S., at 367 (explaining that in Boyde v. California, 494 U. S. 370, 380 (1990), "we held that a reviewing court must determine 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence' "). In three later cases, we gave Penry I the "fair reading" required by Johnson and repudiated several Fifth Circuit precedents providing the basis for its narrow reading of that case. First, in our review of Penry's resentencing, at which the judge had supplemented the special issues with a nullification instruction, we again concluded that the jury had not been provided with an adequate "'vehicle for expressing its "reasoned moral response" ' " to his mitigating evidence. Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II). Indeed, given that the resentencing occurred after the enactment of AEDPA, we concluded (contrary to the views of the Fifth Circuit, which had denied Penry a COA) that the GCA's judgment affirming the death sentence was objectively unreasonable. Id., at 803-804. Second, and as we have already noted, in Tennard we held that the Fifth Circuit's test for identifying relevant mitigating evidence was incorrect. 542 U. S., at 284. Most recently, in Smith v. Texas, 543 U. S. 37 (2004) (per curiam), and again contrary to the views of the Fifth Circuit, we held that a nullification instruction that was different from the one used in Penry's second sentencing hearing did not foreclose the defendant's claim that the special issues had precluded the jury from "expressing a 'reasoned moral response' to all of the evidence relevant to the defendant's culpability." Id., at 46. VII Our line of cases in this area has long recognized that before a jury can undertake the grave task of imposing a death sentence, it must be allowed to consider a defendant's moral culpability and decide whether death is an appropriate punishment for that individual in light of his personal history and characteristics and the circumstances of the offense. As Chief Justice Burger wrote in Lockett: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." 438 U. S., at 605. Our cases following Lockett have made clear that when the jury is not permitted to give meaningful effect or a "reasoned moral response" to a defendant's mitigating evidence — because it is forbidden from doing so by statute or a judicial interpretation of a statute — the sentencing process is fatally flawed. For that reason, our post-Penry cases are fully consistent with our conclusion that the judgment of the Court of Appeals in this case must be reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered. For purposes of consistency with testimony given by witnesses at trial and sentencing, we refer to petitioner throughout the opinion by his given name, Ted Cole. These were the two standard Texas special issues in place at the time of Cole's sentencing. In 1991, the Texas Legislature amended the special issues in response to this Court's decision in Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I), to include language instructing the jury to decide "[wjhether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed." Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(e)(1) (Vernon 2006). Although Cole had not raised any of the 21 claims presented in his state habeas application on direct appeal — including his claim that the jury heard significant mitigating evidence which it could neither consider nor give effect to under the Texas sentencing statute, in violation of Penry I — under state law, his Penry claim remained cognizable on state habeas review. See Ex parte Kunkle, 852 S. W. 2d 499, 502, n. 3 (Tex. Crim. App. 1993) (en banc) (holding that "we have held that [allegations of Penry error occurring in cases tried before Penry] are cognizable via habeas corpus despite an applicant's failure to raise them on direct appeal"). Nor did Cole's failure to raise this claim on direct appeal affect its later review under AEDPA by the United States Court of Appeals for the Fifth Circuit. See Jackson v. Johnson, 150 F. 3d 520, 523 (CA5 1998) (holding that Texas' postconviction procedures provide petitioners "adjudication on the merits" sufficient to satisfy 28 U. S. C. § 2254(d)). The trial judge also noted that there were "no controverted, previously unresolved factual issues regarding petitioner's Pendry [sic] claim." App. 161. The contrast between the District Court's succinct statement of Penry Ps holding and the prosecutor's explanation at voir dire of the jurors' duty to answer the special issues on the basis of the facts presented and not their views about Cole's moral culpability, see Part I, supra, could not be more stark. The Court of Appeals distinguished Penry I on the ground that Ferny's evidence of mental retardation could only have been considered as aggravating, whereas this "record does not suggest that the jury viewed Cole's mitigating evidence as an aggravating factor only . [T]his evidence fits well within the broad scope of the future dangerousness special issue . 418 F. 3d, at 506-507, and n. 54. In his dissent, Judge Dennis argued that the panel had improperly "used another Fifth Circuit gloss upon a Supreme Court decision, i. e., the double edged evidence limitation of Penry I, that has no basis in the Supreme Court decisions, to avoid confronting the real issue." Cole v. Dretke, 443 F. 3d 441, 442 (CA5 2006). The opinion also referred to a proposition that "cannot fairly be denied — that death is a punishment different from all other sanctions in kind rather than degree," and continued on to conclude that "[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson, 428 U. S., at 303-304. "By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function." Jurek, 428 U. S., at 276 (joint opinion of Stewart, Powell, and Stevens, JJ.); see also Proffitt, 428 U. S., at 257-258 (same). In Penry 1 itself, the Court noted that the rule sought by Penry— "that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed — is not a 'new rule' under Teague [v. Lane, 489 U. S. 288 (1989),] because it is dictated by Eddings and Lockett." 492 U. S., at 318-319. See Ohio Rev. Code Ann. §2929.04(B)(7) (Anderson 1982) (amended 1981) (adding, as a mitigating circumstance, "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death"). To the extent that Jurek implied at the time it was decided that all that was required by the Constitution was that the defense be authorized to introduce all relevant mitigating circumstances, and that such information merely be before the jury, it has become clear from our later cases that the mere ability to present evidence is not sufficient. The only mitigating evidence presented in Jurek — offered to rebut the State's witnesses' testimony about Jurek's bad reputation in the community — appears to have consisted of Jurek's father's testimony that Jurek had "always been steadily employed since he had left school and that he contributed to his family's support." 428 U. S., at 267. Therefore, the question presented in our later cases — namely, whether the jury was precluded from giving meaningful effect to mitigating evidence, particularly that which may go to a defendant's lack of moral culpability — was not at issue in that case. When we deemed the Texas sentencing scheme constitutionally adequate in Jurek, we clearly failed to anticipate that when faced with various other types of mitigating evidence, the Texas special issues would not provide the sentencing jury with the requisite "adequate guidance." "In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas capital sentencing procedures satisfied the Eighth Amendment requirement that the sentencer be allowed to consider circumstances mitigating against capital punishment. It was observed that even though the statute did not explicitly mention mitigating circumstances, the Texas Court of Criminal Appeals had construed the special verdict question regarding the defendant's future dangerousness to permit jury consideration of the defendant's prior criminal record, age, mental state, and the circumstances of the crime in mitigation. Id., at 271-273. Since the decision in Jurek, we have emphasized that the Constitution guarantees a defendant facing a possible death sentence not only the right to introduce evidence mitigating against the death penalty but also the right to consideration of that evidence by the sentencing authority. Lockett v. Ohio, 438 U. S. 586 (1978), established that a State may not prevent the capital sentencing authority "from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation.' Id., at 605 (plurality opinion). We reaffirmed this conclusion in Eddings v. Oklahoma, 455 U. S. 104 (1982), and in Hitchcock v. Dugger, 481 U. S. 393 (1987)." Franklin, 487 U. S., at 183-184 (emphasis added). The Chief Justice's dissent incorrectly assumes that our holding today adopts the rule advocated by the petitioner in Graham v. Collins, 506 U. S.- 461 (1993), namely, that " 'a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues.' " Post, at 271 (quoting Graham, 506 U. S., at 476; emphasis in Graham). The rule that we reaffirm today — a rule that has been clearly established since our decision in Penry I — is this: Special instructions are necessary when the jury could not otherwise give meaningful effect to a defendant's mitigating evidence. The rule is narrower than the standard urged by Graham because special instruction is not required when mitigating evidence has only a tenuous connection — '"some arguable relevance" — to the defendant's moral culpability. But special instruction is necessary when the defendant's evidence may have meaningful relevance to the defendant's moral culpability "beyond the scope of the special issues." Penry I, 492 U. S., at 322-323. Despite the dissent's colorful rhetoric, it cites no post-Penry I cases inconsistent with this reading of its holding. "In Franklin, however, the five concurring and dissenting Justices did not share the plurality's categorical reading of Jurek. In the plurality's view, Jurek had expressly and unconditionally upheld the manner in which mitigating evidence is considered under the special issues. [487 U. S.,] at 179-180, and n. 10. In contrast, five Members of the Court read Jurek as not precluding a claim that, in a particular case, the jury was unable to fully consider the mitigating evidence introduced by a defendant in answering the special issues. 487 U. S., at 183 (O'Connor, J., concurring in judgment); id., at 199-200 (Stevens, J., dissenting). Indeed, both the concurrence and the dissent understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced that was rele vant to the defendant's background and character and to the circumstances of the offense." Id., at 320-321; see also id., at 318 ("[T]he facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present"). It is also clear that Penry I applies in eases involving evidence that is neither double edged nor purely aggravating, because in some cases a defendant's evidence may have mitigating effect beyond its ability to negate the special issues. See, e. g., Tennard v. Dretke, 542 U. S. 274, 288-289 (2004) (holding that petitioner was entitled to a COA on his Penry claim where his evidence of low IQ and impaired intellectual functioning had "mitigating dimension beyond the impact it has on the individual's ability to act deliberately"). In Tennard, the majority declined to accept the dissent's argument that the petitioner's evidence of low intelligence did "not necessarily create the Penry I 'two-edged sword,' " and therefore could be given adequate mitigating effect within the context of the future dangerousness special issue. 542 U. S., at 293 (Rehnquist, C. J., dissenting). Cf. Johnson v. Texas, 509 U. S. 350, 386 (1993) (O'Connor, J., dissenting) ("The Court today holds that 'the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered . . . , but also to be given effect in all possible ways, incl'uding ways that the questions do not permit' " (quoting Penry I, 492 U. S., at 355 (Scalia, J., concurring in part and dissenting in part); emphasis in original)); cf. also Smith v. Texas, 543 U. S. 37, 41, 46-48 (2004) (per curiam) (reversing the CCA's denial of postconvietion relief because the special issues did not provide an adequate vehicle for expressing a " 'reasoned moral response'" to petitioner's evidence of low IQ and a troubled upbringing). The linchpin of The Chief Justice's dissent is his assumption that Justice O'Connor's opinions in Franklin and Penry I merely described two ad hoc judgments — see post, at 269-270 — rather than her understanding of the governing rule of law announced in Lockett, Eddings, and Hitchcock v. Dugger, 481 U. S. 393 (1987). In his view, our line of cases in this area has flip-flopped, depending on the composition of the majority, rather than slowly defining core principles by eliminating those interpretations of the rule that are unsupportable. The fact that Justice O'Connor's understanding of the law was confirmed by the Court in Penry I in 1989 — well before AEDPA was enacted — is a sufficient response to most of the rhetoric in the dissent. Neither Justice O'Connor's opinion for the Court in Penry I, nor any other opinion she joined, ever endorsed the '"some arguable relevance' " position described by The Chief Justice, see post, at 271, 279, which mistakenly interprets our opinion as adopting the rule that the dissenters in Franklin and Saffle v. Parks, 494 U. S. 484 (1990), would have chosen, see post, at 271, 279. The fact that the Court never endorsed that broader standard is fully consistent with our conclusion that the narrower rule applied in Penry I itself is "clearly established." Arguments advanced in later dissenting opinions do not affect that conclusion. The Texas cases relied upon by the court were Garcia v. State, 919 S. W. 2d 370, 398-399 (Crim. App. 1996) (holding that, in light of the fact that Garcia received a "Penry" instruction (included in the amended Texas special issues), which instructed the jury to consider the defendant's character and background in determining whether to impose life rather than death, he was not entitled to any special instructions requiring the jury to consider his drug use, alcoholism, and family background as mitigating evidence); Mines v. State, 888 S. W. 2d 816, 818 (Crim. App. 1994) (holding, on remand after Johnson, that Mines' mitigating evidence of bipolar disorder was "well within the effective reach of the jury"); and Zimmerman v. State, 881 S. W. 2d 360, 362 (Crim. App. 1994) (holding, also on remand after Johnson, that Zimmerman's "mitigating" evidence of low IQ, past substance abuse, a diagnosis of paranoid personality disorder, and a disruptive family environment did not warrant an additional instruction under Johnson or Penry I). Graham claimed that the Texas system had not "allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits"; in Johnson, we declined to adopt such a rule, even without the Teague bar that prevented us from doing so in Graham. 509 U. S., at 365-366. This fact should be reassuring to those who fear that the rule we endorse today — and which we have endorsed since Penry 7 — "would require a new sentencing in every case." Post, at 271 (Roberts, C. J., dissenting). A jury may be precluded from doing so not only as a result of the instructions it is given, but also as a result of prosecutorial argument dictating that such consideration is forbidden. See Part VI, infra. Because The Chief Justice's only concern is with the proper application of AEDPA, he finds it unnecessary to define the rule that he thinks post-Penry I cases either did or should have applied. What is most relevant under AEDPA, however, is the holdings set forth in majority opinions, rather than the views of dissenters who supported a different understanding of the law at the time those opinions wére written. We came to the same conclusion in Graham, after distinguishing the defendant's mitigating evidence in that case from that offered by the defendant in Penry I: "The jury was not forbidden to accept the suggestion of Graham's lawyers that his brief spasm of criminal activity in May 1981 was properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham's evidence, like Penry's, had significance beyond the scope of the first special issue, it is apparent that Graham's evidence — unlike Penry's — had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry's evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham's evidence quite readily could have supported a negative answer." 506 U. S., at 475-476. In Graham, we acknowledged that Penry I did not "effecft] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute." Graham, 506 U. S., at 474. The reason, of course, that this was not the case is because the rule set forth in Penry I was merely an application of the settled Lockett-Eddings-Hitchcock rule described by Justice O'Connor in her opinions. Without making any attempt to explain how the jury in either this case or in Brewer v. Quarterman, post, p. 286, could have given "meaningful effect" or a "reasoned moral response" to either defendant's mitigating evidence, The Chief Justice concludes his dissent by lamenting the fact that the views shared by Justice O'Connor's concurrence and the dissenters in Franklin in 1988 — and later endorsed in Penry I — "actually represented 'clearly established' federal law at that time." Post, at 280. To his credit, his concluding sentence does not go so far as to state that he favors a "tunc pro nunc" rejection of those views, an endorsement of the views expressed by the four dissenters in Penry I, or even agreement with the Fifth Circuit's recently rejected test for identifying relevant miti gating evidence. See Nelson v. Quarterman, 472 F. 3d 287, 291-293 (2006) (en banc) (recognizing the "now-defunct" nature of the Fifth Circuit's "'constitutional-relevance' test" post-Tennard and that a "'full-effect' " standard — meaning that "a juror be able to express his reasoned moral response to evidence that has mitigating relevance beyond the scope of the special issues" — was "clearly established" for purposes of AEDPA in 1994, when Nelson's conviction became final).

409 U.S. 352

Mr. Chief Justice Burger delivered the opinion of the Court. We granted the writ in this case to consider a narrow but important question in the application of the federal perjury statute, 18 U. S. C. § 1621: whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication. Petitioner is the sole owner of Samuel Bronston Productions, Inc., a company that between 1958 and 1964, produced motion pictures in various European locations. For these enterprises, Bronston Productions opened bank accounts in a number of foreign countries; in 1962, for example, it had 37 accounts in five countries. As president of Bronston Productions, petitioner supervised transactions involving the foreign bank accounts. In June 1964, Bronston Productions petitioned for an arrangement with creditors under Chapter XI of the Bankruptcy Act, 11 U. S. C. § 701 et seq. On June 10, 1966, a referee in bankruptcy held a § 21 (a) hearing to determine, for the benefit of creditors, the extent and location of the company's assets. Petitioner's perjury conviction was founded on the answers given by him as a witness at that bankruptcy hearing, and in particular on the following colloquy with a lawyer for a creditor of Bronston Productions: "Q. Do you have any bank accounts in Swiss banks, Mr. Bronston? "A. No, sir. "Q. Have you ever? "A. The company had an account there for about six months, in Zurich. "Q. Have you any nominees who have bank accounts in Swiss banks? "A. No, sir. "Q. Have you ever? "A. No, sir." It is undisputed that for a period of nearly five years, between October 1959 and June 1964, petitioner had a personal bank account at the International Credit Bank in Geneva, Switzerland, into which he made deposits and upon which he drew checks totaling more than $180,000. It is likewise undisputed that petitioner's answers were literally truthful, (a) Petitioner did not at the time of questioning have a Swiss bank account, (b) Bronston Productions, Inc., did have the account in Zurich described by petitioner, (c) Neither at the time of questioning nor before did petitioner have nominees who had Swiss accounts. The Government's prosecution for perjury went forward on the theory that in order to mislead his questioner, petitioner answered the second question with literal truthfulness but unresponsively addressed his answer to the company's assets and not to his own — thereby implying that he had no personal Swiss bank account at the relevant time. At petitioner's trial, the District Court instructed the jury that the "basic issue" was whether petitioner "spoke his true belief." Perjury, the court stated, "necessarily involves the state of mind of the accused" and "essentially consists of wilfully testifying to the truth of a fact which the defendant does not believe to be true"; petitioner's testimony could not be found "wilfully" false unless at the time his testimony was given petitioner "fully understood the questions put to him but nevertheless gave false answers knowing the same to be false." The court further instructed the jury that if petitioner did not understand the question put to him and for that reason gave an unresponsive answer, he could not be convicted of perjury. Petitioner could, however, be convicted if he gave an answer "not literally false but when considered in the context in which it was given, nevertheless constitute [d] a false statement." The jury began its deliberations at 11:30 a. m. Several times it requested exhibits or additional instructions from the court, and at one point, at the request of the jury, the District Court repeated its instructions in full. At 6:10 p. m., the jury returned its verdict, finding petitioner guilty on the count of perjury before us today and not guilty on another charge not here relevant. In the Court of Appeals, petitioner contended, as he had in post-trial motions before the District Court, that the key question was imprecise and suggestive of various interpretations. In addition, petitioner contended that he could not be convicted of perjury on the basis of testimony that was concededly truthful, however unresponsive. A divided Court of Appeals held that the question was readily susceptible of .a responsive reply and that it adequately tested the defendant's belief in the veracity of his answer. The Court of Appeals further held that, "[f]or the purposes of 18 U. S. C. § 1621, an answer containing half of the truth which also constitutes a lie by negative implication, when the answer is intentionally given in place of the responsive answer called for by a proper question, is perjury." 453 F. 2d 555, 559. In this Court, petitioner renews his attack on the specificity of the question asked him and the legal sufficiency of his answer to support a conviction for perjury. The problem of the ambiguity of the question is not free from doubt, but we need not reach that issue. Even assuming, as we do, that the question asked petitioner specifically focused on petitioner's personal bank accounts, we conclude that the federal perjury statute cannot be construed to sustain a conviction based on petitioner's answer. The statute, 18 U. S. C. § 1621, substantially identical in its relevant language to its predecessors for nearly a century, is "a federal statute enacted in an effort to keep the course of justice free from the pollution of perjury." United States v. Williams, 341 U. S. 58, 68 (1951). We have held that the general federal perjury provision is applicable to federal bankruptcy proceedings. Hammer v. United States, 271 U. S. 620 (1926). The need for truthful testimony in a § 21 (a) bankruptcy proceeding is great, since the proceeding is "a searching inquiry into the condition of the estate of the bankrupt, to assist in discovering and collecting the assets, and to develop facts and circumstances which bear upon the question of discharge." Travis v. United States, 123 F. 2d 268, 271 (CA10 1941). Here, as elsewhere, the perpetration of perjury "well may affect the dearest concerns of the parties before a tribunal. . ." United States v. Norris, 300 U. S. 564, 574 (1937). There is, at the outset, a serious literal problem in applying § 1621 to petitioner's answer. The words of the statute confine the offense to the witness who "willfully . . . states . . . any material matter which he does not believe to be true." Beyond question, petitioner's answer to the crucial question was not responsive if we assume, as we do, that the first question was directed at personal bank accounts. There is, indeed, an implication in the answer to the second question that there was never a personal bank account; in casual conversation this interpretation might reasonably be drawn. But we are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true. The Government urges that the perjury statute be construed broadly to reach petitioner's answer and thereby fulfill its historic purpose of reinforcing our adversary factfinding process. We might go beyond the precise words of the statute if we thought they did not adequately express the intention of Congress, but we perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alerb — as every examiner ought to be — to the incongruity of petitioner's unresponsive answer. Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. It should come as no surprise that a participant in a bankruptcy proceeding may have something to conceal and consciously tries to do so, or that a debtor may be embarrassed at h'is plight and yield information reluctantly. It is the responsibility of the lawyer to probe ; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination. It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of "intent to mislead" or "perjurv by implication." The seminal modern treatment of the history of the offense concludes that one consideration of policy overshadowed all others during the years when perjury first emerged as a common-law offense: "that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying." Study of Perjury, reprinted in Report of New York Law Revision Commission, Legis. Doc. No. 60, p. 249 (1935). A leading 19th century commentator, quoted by Dean Wigmore, noted that the English law "throws every fence round a person accused of perjury," for "the obligation of protecting witnesses from oppression, or annoyance, by charges, or threats of charges, of having borne false testimony, is far paramount to that of giving even perjury its deserts. To repress that crime, prevention is better than cure: and the law of England relies, for this purpose, on the means provided for detecting and exposing the crime at the moment of commission, — such as publicity, cross-examination, the aid of a jury, etc.; and on the infliction of a severe, though not excessive punishment, wherever the commission of the crime has been clearly proved." W. Best, Principles of the Law of Evidence § 606 (C. Chamberlayne ed. 1883). See J. Wigmore, Evidence 275-276 (3d ed. 1940). Addressing the same problem, Montesquieu took as his starting point the French tradition of capital punishment for perjury and the relatively mild English punishment of the pillory. He thought the disparity between the punishments could be explained because the French did not permit the accused to present his own witnesses, while in England "they admit of witnesses on both sides, and the affair is discussed in some measure between them; consequently false witness is there less dangerous, the accused having a remedy against the false witnesses, which he has not in France." Montesquieu, The Spirit of the Laws, quoted in Study of Perjury, supra, p. 253. Thus, we must read § 1621 in light of our own and the traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony. While "the lower federal courts have not dealt with the question often," and while their expressions do not deal with unresponsive testimony and are not precisely in point, "it may be said that they preponderate against the respondent's contention." United States v. Norris, 300 U. S., at 576. The cases support petitioner's position that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry. United States v. Wall, 371 F. 2d 398 (CA6 1967); United States v. Slutzky, 79 F. 2d 504 (CA3 1935); Galanos v. United States, 49 F. 2d 898 (CA6 1931); United States v. Cobert, 227 F. Supp. 915 (SD Cal. 1964). The Government does not contend that any misleading or incomplete response must be sent to the jury to determine whether a witness committed perjury because he intended to sidetrack his questioner. As the Government recognizes, the effect of so unlimited an interpretation of §1621 would be broadly unsettling. It is said, rather, that petitioner's testimony falls within a more limited category of intentionally misleading responses with an especially strong tendency to mislead the questioner. In the federal cases cited above, the Government tells us the defendants gave simple negative answers "that were both entirely responsive and entirely truthful . In neither case did the defendant — as did petitioner here — make affirmative statements of one fact that in context constituted denials by negative implication of a related fact." Thus the Government isolates two factors which are said to require application of the perjury statute in the circumstances of this case: the unresponsiveness of petitioner's answer and the affirmative cast of that answer, with its accompanying negative implication. This analysis succeeds in confining the Government's position, but it does not persuade us that Congress intended to extend the coverage of § 1621 to answers unresponsive on their face but untrue only by "negative implication." Though perhaps a plausible argument can be made that unresponsive answers are especially likely to mislead, any such argument must, we think, be predicated upon the questioner's being aware of the unresponsiveness of the relevant answer. Yet, if the questioner is aware of the unresponsiveness of the answer, with equal force it can be argued that the very unresponsiveness of the answer should alert counsel to press on for the information he desires. It does not matter that the unresponsive answer is stated in the affirmative, thereby implying the negative of the question actually posed; for again, by hypothesis, the examiner's awareness of unresponsiveness should lead him to press another question or reframe his initial question with greater precision. Precise questioning is imperative as a predicate for the offense of perjury. It may well be that petitioner's answers were not guileless but were shrewdly calculated to evade. Nevertheless, we are constrained to agree with Judge Lumbard, who dissented from the judgment of the Court of Appeals, that any special problems arising from the literally true but unresponsive answer are to be remedied through the "questioner's acuity" and not by a federal perjury prosecution. Reversed. 18 U. S. C. § 1621 provides: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States." Under § 334 of the Bankruptcy Act, 11 U. S. C. § 734, the court must hold a first meeting of creditors within a limited period of time after the Chapter XI petition is filed. Section 336,11 U. S. C. § 736, provides that the judge or court-appointed referee shall preside at the meeting and "shall examine the debtor or cause him to be examined and hear witnesses on any matter relevant to the proceeding." Section 21 (a) of the Act, 11 U. S. C. § 44 (a), is applicable to a Chapter XI proceeding because it is a provision of Chapters I through VII "not inconsistent with or in conflict with the provisions of [Chapter XI]." 11 U. S. C. §702. Section 21 (a) provides, in pertinent part, that "[t]he court may, upon application of any officer, bankrupt, or creditor, by order require any designated persons . to appear before the court . to be examined concerning the acts, conduct, or property of a bankrupt." Numerous statements of the broad scope of a § 21 (a) inquiry are collected in 2 W. Collier, Bankruptcy ¶ 21.11 (14th ed. 1971). The officers of a bankrupt may be required to undergo a § 21 (a) examination even if they are not still officers at the time of filing. Id., ¶ 21.09. If it appears that the interest of a witness is adverse to the party calling him to testify, under § 21 (j), 11 U. S. C. § 44 (j), the party may examine the witness as if under cross-examination, and the examining party is not bound by the witness' testimony. 1A W. Collier, Bankruptcy ¶ 5.22 (14th ed. 1972). The District Court gave the following example "as an illustration only": "[I]f it is material to ascertain how many times a person has entered a store on a given day and that person responds to such a question by saying five times when in fact he knows that he entered the store 50 times that day, that person may be guilty of perjury even though it is technically true that he entered the store five times." The illustration given by the District Court is hardly comparable to petitioner's answer; the answer "five times" is responsive to the hypothetical question and contains nothing to alert the questioner that he may be sidetracked. See infra, at 358. Moreover, it is very doubtful that an answer which, in response to a specific quantitative inquiry, baldly understates a numerical fact can be described as even "technically true." Whether an answer is true must be determined with reference to the question it purports to answer, not in isolation. An unresponsive answer is unique in this respect because its unresponsiveness by definition prevents its truthfulness from being tested in the context of the question — unless there is to be speculation as to what the unresponsive answer "implies." See infra, at 359. Petitioner's answer is not to be measured, by the same standards applicable to criminally fraudulent or extortionate statements. In that context, the law goes "rather far in punishing intentional creation of false impressions by a selection of literally true representations, because the actor himself generally selects and arranges the representations." In contrast, "under our system of adversary questioning and cross-examination the scope of disclosure is largely in the hands of counsel and presiding officer." A. L. I. Model Penal Code §208.20, Comment (Tent. Draft No. 6, 1957, p. 124). Arguably, the questioner will assume there is some logical justification for the unresponsive answer, since competent witnesses do not usually answer in irrelevancies. Thus the questioner may conclude that the unresponsive answer is given only because it is intended to make a statement — a negative statement — relevant to the ques tion asked. In this ease, petitioner's questioner may have assumed that petitioner denied having a personal account in Switzerland; only this unspoken denial would provide a logical nexus between inquiry directed to petitioner's personal account and petitioner's adverting, in response, to the company account in Zurich.

267 U.S. 603

Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied.

454 U.S. 1090

Sup. Ct. Alaska. Certiorari denied.

566 U.S. 906

C. A. 8th Cir. Certiorari denied.

541 U.S. 907

C. A. 3d Cir. Certiorari denied.

534 U.S. 1079

Ct. App. Tex., 11th Dist. Cer-tiorari denied.

396 U.S. 891

C. A. 5th Cir. Certiorari denied.

54 Cust. Ct. 721

Oliver, Chief Judge: This appeal for reappraisement has been submitted for decision upon the following stipulation: IT IS HEREBY STIPULATED AND AGREED by the undersigned, subject to the approval of the Court: 1. That the subject merchandise consists of hardboard exported from Sweden as to which the Secretary of the Treasury issued a finding of dumping, published in 89 T.D. 197, TD 53567, made pursuant to the Antidumping Act of 1921 (19 U.S.C., 160, et seq.). 2. That pursuant to Section 168 of said Antidumping Act, the appraiser reported the purchase price (Sec. 162) and the foreign market value (Sec. 164) as to the merchandise listed on Schedule A attached hereto and made a part hereof. 3. That pursuant to Sections 500 and 402 of the Tariff Act of 1930 as amended, the appraiser appraised all of the merchandise in the appeals for appraisement enumerated on Schedule A for regular duty purposes. 4. That the plaintiff duly filed appeals for reappraisement as to the values referred to in the above paragraphs Nos. 2 and 3. 5. That at the times relevant herein the purchase price and the foreign market value under the said Antidumping Act are as specified in the aforesaid Schedule A attached hereto. 6. That as to all other items of merchandise not identified on Schedule A, the appraiser's reports of purchase price and of foreign market value are correct. 7. That the appraiser's findings of value under the provisions of Section 402 of tbe Tariff Act of 1930 as amended, are correct. 8. That said appeals are submitted for decision upon this stipulation and said Schedule A. Upon tbe agreed facts, I find foreign market value, as defined in section 164 of tbe Antidumping Act of 1921 (19 U.S.C. § 164), for the merchandise described in schedule A, annexed to this decision and made a part hereof, and the purchase price thereof, within section 162 of said act (19 U.S.C. § 162), to be as indicated in said schedule. As to all other items of merchandise not identified in schedule A, I find the foreign market values and purchase prices to be as reported by the appraiser. In all other respects, the values of all merchandise are as returned by the appraiser. Judgment will be entered accordingly.

484 U.S. 1004

App. Ct. Ill., 2d Dist. Certiorari denied.

389 U.S. 1025

ante, p. 80; and ante, p. 934. Petitions for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of these petitions.

45 Cust. Ct. 368

Ford, Judge: The merchandise in the case at bar, invoiced as "Chipwood Hats, Item No. 5250," was classified under paragraph 1504(b) (3) of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dee. 150, T.D. 54108, .and assessed with duty at the rate of $2.28 per dozen and 11% per centum ad valorem under the provision for "Hats, bonnets, and hoods, composed wholly or in chief value of straw, chip, Blocked or trimmed, whether or not bleached; dye.0? epjpred, or stained ." Plaintiff, by its protest, claims that said bats are not trimmed and, accordingly, are properly dutiable at 15 cents per dozen and 12% per centum ad valorem under paragraph 1504(b) of the Tariff Act of 1930, as modified by the Protocol of terms of accession by Japan to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. '53865, and T.D. 53877, as "Hats, bonnets, and hoods, composed wholly or in chief value of chip, Other, if bleached, dyed, colored, or stained." When this case was called for hearing, counsel for the respective parties stipulated in effect that the merchandise described as item No. 5250, covering 20 dozen shipwood hats, consisted of hats in chief value of chip, bleached and colored, but not blocked, trimmed, or sewed. Accepting these facts, we find that said item No. 5250 consists of hats in chief value of chip, which are not trimmed, and, accordingly, are properly dutiable at the rate of 15 cents per dozen and 12% per centum ad valorem under paragraph 1504(b) of the Tariff Act of 1930, as modified, supra\ as claimed by plaintiff herein. To the extent indicated, the specified claim in this suit is sustained; in all other respects and as to all other merchandise, all the claims are overruled. Judgment will be rendered accordingly.

481 U.S. 1039

C. A. 4th Cir. Certio-rari denied.

322 U.S. 731

Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied.

528 U.S. 876

C. A. 2d Cir. Certiorari denied.

435 U.S. 951

C. A. 5th Cir. Certiorari denied.

13 Wall. 311

Mr. Justice STRONG delivered the opinion of the court. The first and leading question presented by this case is whether the complainants have an exclusive light to the use of the words " Lackawanna coal," as a distinctive name or trade-mark for the coal mined by them and transported over their railroad and canal to market. The averments of the bill are supported by no inconsiderable evidence. The complainants were undoubtedly, if not the first, among the first producers of coal from the Lackawanna Valley, and the coal sent to market by them has been generally known, and designated as Lackawanna coal. "Whether the name " Lackawanna coal " was devised or adopted by them as a trade-mark before it came into common use is not so clearly established. On the contrary the evidence shows that long before the complainants commenced their operations, and long before they had any existence as a corporation, the region of country in which their mines were situated was called " The Lackawanna Valley;" that it is a region of large dimensions, extending along the Lackawanna River to its junction with the Susquehanna, embracing within its limits great bodies of coal lands, upon a portion of which are the mines of the complainants, and upon other portions of which are the mines of The Pennsylvania Coal Company, those of The Delaware, Lackawanna, and Western Railroad Company, and those of other smaller operators. The word " Lackawanna," then, was not devised by the complainants. They found it a settled and known appellative of the district in which their coal deposits and those of others were situated. At the time when they began to use it, it was a recognized description of the region, and of course of the earths and minerals in the region. The bill alleges, however, not only that the complainants devised, adopted, and appropriated the word, as a name or trade-mark for their coal, but that it had never before been used, or applied in combination with the word "coal," as a name or trade-mark for any kind of coal, and it is the combination of the word Lackawanna with the word coal that constitutes the trade-mark to the exclusive use of which they assert a right. It may be observed there is no averment that the other coal of the Lackawanna Valley differs at all in character or quality from that mined on the complainants' lands. On the contrary, the bill alleges that it cannot easily be distinguished therefrom by inspection. The bill is therefore an attempt to secure to the complainants the exclusive use of the name "Lackawanna coal," as applied, not to any manufacture of theirs, but to that portion of the coal of the Lackawanna Valley which they mine and send to market, differing neither in nature or quality from all other coal of the same region. Undoubtedly words or devices may be adopted as trademarks which are not original inventions of him who adopts them, and courts of equity will protect him against any fraudulent appropriation or imitation of them by others. Property in a trade-mark, or rather in the use of a trademark or name, has very little analogy to that which exists in copyrights, or in patents for inventions. Words in common use, with some exceptions, may be adopted, if, at the time of their adoption, they were not employed to designate the same, or like articles of production. The office of a trade-mark is to point out distinctively the origin, or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. This may, in many cases, be done by a name, a mark, or a device well known, but not previously applied to the same article. But though it is not necessary that the word adopted as a trade-name should be a new creation, never before known or used, there are some limits to the right of selection. This will be manifest when it is considered that in all cases where rights to the exclusive use of a trade-mark are invaded, it is invariably held that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and that it is only when this false representation is directly or indirectly made that the party who appeals to a court of equity can have relief. This is the doctrine of all tbe authorities. Hence the trade-mark must either by itself, or by association, point distinctively to the origin or ownership of the article to which it is applied. The reason of this is that unless it does, neither can he who first adopted it be injured by any appropriation or imitation of it by others, nor can the public be deceived. The first appropriator of a name or device pointing to his ownership, or which, by being associated with articles of trade, has acquired an understood reference to the originator, or manufacturer of the articles, is injured whenever another adopts the same name or device for similar articles, because such adoption is in effect representing falsely that the productions of the latter are those of the former. Thus the custom and advantages to which the enterprise and skill of the first appropriator had given him a just right are abstracted for another's use, and this is done by deceiving the public, by inducing the public to purchase the goods and manufactures of one person supposing them to be those of another. The trademark must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. And there are two rules which are not to be overlooked. No one can claim protection for the exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade-mark and the exclusive use of it be entitled to legal protection. As we said in the well-considered case of The Amoskeag Manufacturing Company Spear, " the owner of an original trade-mark has an undoubted right to be protected in the exclusive use of all the marks, forms, or symbols, that were appropriated as designating the true origin or ownership of the article or fabric to which they are affixed; but he has no right to the exclusive use of any words, letters, figures, or symbols, which have no relation to the origin or ownership of the goods, but are only meant to indicate their names or quality. He has no right to appropriate a sign or a symbol, which, from the nature of the fact it is used to signify, others may employ with equal truth, and therefore have an equal right to employ for the same purpose." And it is obvious that the same reasons which forbid the exclusive appropriation of generic names or of those merely descriptive of the article manufactured and which can be employed with truth by other manufacturers, apply with equal force to the appropriation of geographical names, designating districts of country. Their nature is such that they cannot point to the origin (personal origin) or ownership of the articles of trade to which they may be applied. They point only at the place of production, not to the producer, and could they be appropriated exclusively, the appropriation would result in mischievous monopolies. Could such phrases, as "Pennsylvania wheat," "Kentucky hemp," "Virginia tobacco," or " Sea Island cotton," be protected as trademarks ; could any one prevent all others from using them, or from selling articles produced in the districts they describe under those appellations, it would greatly embarrass trade, and secure exclusive rights to individuals in that which is the common right of many. It can be permitted only when the reasons that lie at the foundation of the protection given to trade-marks are entirely overlooked. It cannot be said that there is any attempt to deceive the public when one sells as Kentucky hemp, or as Lehigh coal, that which in truth is such, or that there is any attempt to appropriate the enter prise or business reputation of another who may have previously sold his goods with the same description. It is not selling one man's goods as and for those of another. Nothing is more common than that a manufacturer sends his products to market, designating them by the name of the place where they were made. But we think no case can be found in which other producers of similar products in the same place, have been restrained from the use of the same name in describing their goods. It is true that in the case of Brooklyn White Lead Company v. Masury, where it appeared that the defendant (at first selling his product under the name "Brooklyn white lead"), had added to the name the word " Company" or " Co.," which made it an imitation of the plaintiff's trade-mark, though he was not a company, he was enjoined against the use of the added word. It was a case of fraud. He had assumed a false name in imitation of a prior true one, and with the obvious design of leading the public to think his manufacture was that of the plaintiff But the court said, as both the plaintiff and defendant dealt in the same article, and both manufactured it at Brooklyn, each had the same right to describe it as Brooklyn white lead. We have been referred by the plaintiffs to three decisions which are supposed to justify the adoption of the name simply of a district or town, as a trade-mark. One of these is Alvord v. Newman. There it appeared that the complainants had been manufacturers of cement or water-lime at Akron, from beds in the neighborhood of that place, for about thirteen years, and that they had always designated and sold their products as "Akron cement," and "Akron water-lime." The defendants commenced a similar business twelve years later, and manufactured cement from quarries situated near Syracuse, in Onondaga County, and called their product "Onondaga Akron cement, or waterline," It was not in fact Akron cement (for Akron and Syracuse were a long distance from each other), and the purpose of calling it such was evidently to induce the public to believe that it was the article made by the plaintiffs. The act of the defendants was therefore an attempted fraud, and they were restrained from applying the word Akron to their manufacture. But the case does not rule that any other manufacturer at Akron might not have called his product "Akron cement," or " Akron water-lime." On the contrary, it substantially concedes that the plaintiffs by their prior appropriation of the name of the town in connection with the words cement and lime acquired no exclusive right to its use, as against any one who could use it with truth. McAndrews v. Bassett is another case cited by the complainants. The plaintiffs in that case were manufacturers of liquorice made from roots and juice imported from Anatolia and Spain, and they sent their goods to market stamped "Anatolia." Soon afterwards the defendants made to order from a sample of the plaintiff's liquorice, other liquorice which they also stamped "Anatolia." It was a clear case of an attempt to imitate the mark previously existing, and to put upon the market the new manufacture as that of the first manufacturers. It does not appear, from the report of the case, that the juice or roots from which the defendants' article was made came from Anatolia. If not their mark was false. Of course the Lord Chancellor enjoined them. In answer to the argument that the word Anatolia was in fact the geographical designation of a whole country, a word common to all, and that therefore there could be no property in it, he said, " Property in the word for all purposes cannot exist; but property in that word as applied by way of stamp upon a stick of liquorice does exist the moment a stick of liquorice goes into the market so stamped and obtains acceptance and reputation in the market." It was not merely the use of the word, but its application by way of stamp upon each stick of liquorice that was protected. Nothing in this ease determines that a right to use the name ofta region of country as a trade-mark for an article may be acquired, to the exclusion of others who produce or sell a similar article coming from the same region. Nor is such a doctrine to be found in Seixo v. Provezende, the remaining case cited by the complainants. The case turned upon an imitation of the plaintiff's device, which was the figure of a coronet combined with the word Seixo, a word which can hardly be said to have been the name of a district of country. It means stony, and though applied to two estates, it was also the name of the plaintiff. Yet nothing in the decision warrants the inference that the word Seixo could aloue become a trade-mark for any article, much less that it could be protected as a trade-mark for any article to the exclusion of its use in describing other articles comjng from the same estate. It must then be considered as sound doctrine that no one can apply the name of a district of country to a well-known article of commerce, and obtain thereby such an exclusive right to the application as to prevent others inhabiting the district or dealing in similar articles coming from the district, from truthfully using the same designation. It is only when the adoption or imitation of what is claimed to be a trade-mark amounts to a false representation, express or implied, designed or incidental, that there is any title to relief against it. True it may be that the use by a second producer, in describing truthfully his product, of a name or a combination of words already in use by another, may have the effect of causing the public to mistake as to the origin or ownership of the product, but if it is just as. true in its application to his goods as it is to those of another who first applied it, and'who therefore claims an exclusive right to use it, there is no legal or moral wrong done. Purchasers maybe mistaken, but they are not deceived by false representations, and equity will not enjoin against telling the truth. These principles, founded alike on reason and authority, are decisive of the present case, and they relieve us from the consideration of much that was pressed upon us in the argument. The defendant has advertised for sale and he is selling coal not obtained from the plaintiffs, not mined or brought to market by them, but coal which he purchased from the Pennsylvania Coal Company, or from the Delaware, Lackawanna, and Western Railroad Company. He has advertised and soid it as Lackawanna coal. It is in fact coal from the Lackawanna region. It is of the same quality and of the same general appearance as that mined by the complainants. It is taken from the same veins or strata. It is truly described by the term Lackawanna coal, as is the coal of plaintiffs. The description does not point to its origin or ownership, nor indicate in the slightest degree the person, natural or artificial, who mined the coal or brought it tp market. All the coal taken from that region is known and has been known for years by the trade, and rated in public statistics as Lackawanna coal. True the Delaware, Lackawanna, and Western Railroad Company have sometimes called their coal Scranton coal, and sometimes Scranton coal from the Lackawanna, and the Pennsylvania Coal Company have called theirs Pittston coal, thus referring to the parts of the region in which they mine. But the generic name, the comprehensive name for it all is Lackawanna coal. In all the coal regions there are numerous collieries, owned and operated by different proprietors, yet the product is truly and rightfully described as Schuylkill, Lehigh, or Lackawanna coal, according to the region from which it comes. We are therefore of opinion that the defendant has invaded no right to which the plaintiffs cau maintain a claim. By advertising and selling coal brought from the Lackawanna Valley as Lackawanna coal, he has made no false representation, and we see no evidence that he has attempted to sell his coal as and for the coal of the plaintiffs. If the public are led into mistake, it is by the truth, not by any false pretence. If the complainants' sales are diminished, it is because they are not the only producers of Lackawanna coal, and not because of any fraud of the defendant. The decree of the Circuit Court dismissing the bill must, therefore, be Affirmed. Quoted supra, p. 315. Amoskeag Manufacturing Co. v. Spear, 2 Sandford's Supreme Court, 599; Boardman v. Meriden Britannia Company, 35 Connecticut, 402; Farina v. Silverlock, 39 English Law and Equity, 514. 2 Sandford's Supreme Court, 599, quoted supra, in the note just preceding. Vide Wolfe v. Goulard, 18 Howard's Practice Reports, 64; Fetridge v. Wells, 4 Abbott's Practice Reports, 144; Town v. Stetson, 5 Id. N. S. 218 Phalon v. Wright, 6 Phillips, 464; Singleton v. Bolton, 3 Douglas, 293 Perry v. Truefitt, 6 Beavan, 66; Canham v. Jones, 2 Vesey & Beames, 218; Millington v. Fox, 3 Milne & Craig, 338. 25 Barbour, 416. 18 Howard's Practice, 64.

535 U.S. 1085

Ct. Grim. App. Ala. Certiorari denied.

50 Cust. Ct. 308

Opinion by Pord, X In accordance with stipulation of counsel that the items marked "A" consist of fish netting similar in all material respects to that involved in Abstract 63947, the merchandise was held dutiable at 25 percent ad valorem under the provision in paragraph 923, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade (T.D. 53865), supplemented by Presidential proclamation (T.D. 53877), for cotton fishing nets, by similitude. The items marked "B," stipulated to consist of synthetic cord or twine similar in all material respects to the component material of the fish nets involved in said Abstract 63947, were held dutiable, depending upon the date of entry, at 35 percent under paragraph 912 of the act as synthetic cord or twine, similar in use to cotton cords, or at 33, 31%, or 30 percent under said paragraph, as modified by the Sixth Protocol to the General Agreement on Tariffs and Trade (T.D. 54108). The claims of the plaintiff were sustained as to the merchandise which was entered or withdrawn from warehouse prior to September 13, 1958.

516 U.S. 875

C. A. 11th Cir. Certiorari denied.

299 U.S. 520

Per Curiam: The appeal herein is dismissed for failure of the appellant to comply with Rule 12.

322 U.S. 714

The motions for leave to file petitions for writs of mandamus are denied.

460 F.3d 231

McLAUGHLIN, Circuit Judge. This case arises from a dispute between Anthony L. Arciniaga and General Motors Corporation ("GM"). The merits of that dispute, however, are not today's concern. Instead, our task is to determine if the Motor Vehicle Franchise Contract Arbitration Fairness Act of 2002 (the "MVFCAFA") limits GM's ability to enforce its arbitration agreement with Arci-niaga. The district court found that it does. We find that it does not. Thus, we reverse the district court's denial of GM's motion to compel arbitration and its grant of Areiniaga's motion to stay arbitration. BACKGROUND Through its Motor Holdings program, GM co-invests in car dealerships with individuals who lack the capital to open a dealership on their own. GM contributes as much as eighty-five percent of the necessary capital in exchange for the preferred stock of the dealership, which is organized as a corporation. The individual provides the remaining necessary capital in exchange for common stock in the dealership, and assumes responsibility for the dealership's day-to-day operations. If all goes smoothly, the dealership redeems GM's preferred stock through its profits until only the common stock remains, leaving the individual operator as the sole owner of the dealership. Through the separate but related Minority Dealer Development program, GM provides training and additional financial support to minority Motor Holdings program candidates. GM frequently donates additional capital to dealerships participating in the Minority Dealer Development program in order to reduce the number of preferred shares that the dealerships must ultimately redeem. At some point in the mid-1990s, GM accepted Arciniaga into the Motor Holdings and Minority Dealer Development programs. GM had already purchased Douglaston Chevrolet-Geo, Inc. (d/b/a Bay Chevrolet), a dealership in Douglaston, New York, from its previous owner. GM and Arciniaga intended that Arciniaga would become the President and eventual sole owner of Bay Chevrolet through the Motor Holdings and Minority Dealer Development programs. In December 1995, GM, Arciniaga, and Bay Chevrolet entered into a Stockholders Agreement. Pursuant to the terms of the agreement, Bay Chevrolet issued 2,100 shares of common stock and 11,900 shares of preferred stock. GM purchased all of the preferred stock for $1,190,000. Arcini-aga purchased Bay Chevrolet's common stock for $210,000,$125,000 of which came from a GM loan. The Stockholders Agreement provided that GM could purchase all of Bay Chevrolet's common stock if at any point the dealership suffered losses that exceeded $280,000. The agreement also provided that all questions concerning its construction, validity, and interpretation were to be governed by New York law. Around the same time, GM and Bay Chevrolet entered into a separate Dealer Sales and Service Agreement (the "Dealer Agreement"). Every GM dealership enters into this form agreement regardless of whether its operator participates in the Motor Holdings or Minority Dealer Development programs. Under the terms of the Dealer Agreement, GM authorized Bay Chevrolet "to sell and service [GM] products" and promised to supply Bay Chevrolet with motor vehicles and to provide training for the dealership's employees. Bay Chevrolet, for its part, pledged to promote, sell, and service GM products. The Dealer Agreement provided that disputes arising from the agreement should be submitted to non-binding arbitration. The agreement is governed by Michigan law, and GM and Bay Chevrolet renewed it in November 2000. Significantly, Arcini-aga is not a party to the Dealer Agreement. In October 1999, for reasons not pertinent to this dispute, GM, Arciniaga, and Bay Chevrolet agreed to a reorganization plan that altered the terms of their investment relationship. Under this plan, they agreed to terminate the 1995 Stockholders Agreement and to enter into a new Stockholders Agreement (the "Amended Stockholders Agreement"). The Amended Stockholders Agreement reduced the loss amount that would trigger GM's right to purchase Bay Chevrolet's common stock from $280,000 to $200,000. Both the reorganization plan and the Amended Stockholders Agreement required GM, Arciniaga, and Bay Chevrolet to enter into a binding Arbitration Agreement, which they did in October 1999. By the terms of the Arbitration Agreement, each party waived its right to a jury trial and agreed to submit to mandatory and binding arbitration any claims arising from or related to, inter alia, Arciniaga's investment in Bay Chevrolet, the business decisions or practices of any of the parties, and any other agreement entered into by the parties, including any Dealer Sales and Services Agreement executed before or after the Arbitration Agreement. The Arbitration Agreement also provided that the Federal Arbitration Act (the "FAA") governs the interpretation, enforcement, and conduct of the arbitration, but Michigan law governs all matters that the FAA does not cover. By February 2005, Bay Chevrolet was reporting losses well over $200,000, thereby triggering GM's option to purchase all of the dealership's common stock. In March 2005, GM notified Arciniaga that it was exercising that option. After Arcinia-ga refused to resign as President of Bay Chevrolet, GM exercised its right to remove him. In June 2005, GM issued Arci-niaga a check for the value of the common stock. In July 2005, Arciniaga sued GM in the United States District Court for the Southern District of New York (Baer, J.). His complaint alleges claims for (1) discrimination in the making or enforcement of contracts in violation of 42 U.S.C. § 1981; (2) violation of the Automobile Dealers Day in Court Act (the "ADDCA"), 15 U.S.C. § 1222; (3) breach of contract; (4) breach of the covenant of good faith and- fair dealing; (5) breach of the fiduciary duty owed by a majority shareholder to a minority shareholder; and (6) fraud. In August 2005, GM filed a demand for arbitration with the American Arbitration Association. Arciniaga countered with a motion in the district court for a preliminary injunction staying arbitration. GM filed a cross-motion to compel arbitration and to stay the district court action. The district court granted Arciniaga's motion to stay arbitration and denied GM's motion to compel arbitration. See Arciniaga v. General Motors Corp., 418 F.Supp.2d 374 (S.D.N.Y.2005). GM now appeals. DISCUSSION GM argues that the district court erred by granting Arciniaga's motion to stay arbitration and denying GM's motion to compel arbitration. We agree. We have jurisdiction. The FAA permits interlocutory review of both a denial of a motion to compel arbitration, 9 U.S.C. § 16(a)(1)(C), and a stay of arbitration, Id. § 16(a)(2). We review de novo the district court's determination. LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir.2004). Dating "back to those days when the English judges opposed any innovation that would deprive them of their jurisdiction," Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 24 (2d Cir.1995), courts once possessed a "hostility" towards arbitration agreements, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Congress passed the FAA to tame that antipathy. Id. Now, it is difficult to overstate the strong federal policy in favor of arbitration, and it is a policy we "have often and emphatically applied." Leadertex, 67 F.3d at 25. The FAA provides that an agreement to arbitrate is "valid, irrevocable, and enforceable." 9 U.S.C. § 2. "Having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Thus, the burden lies with the party attempting to avoid arbitration "to show that Congress intended to preclude a waiver of a judicial forum" for his claims. Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (citing Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)). Here, there is no dispute that Arciniaga and GM entered into a binding arbitration agreement; and there is no denying that their current disagreement falls within the scope of that agreement. The parties do dispute, however, whether Congress intended claims such as Arciniaga's to be nonarbitrable. Arciniaga claims, and the district court agreed, that the MVFCAFA limits the availability of arbitration in this case. The MVFCAFA, a 2002 amendment to the ADDCA, states: Notwithstanding any other provision of law, whenever a motor vehicle franchise contract provides for the use of arbitration to resolve a controversy arising out of or relating to such contract, arbitration may be used to settle such controversy only if after such controversy arises all parties to such controversy consent in writing to use arbitration to settle such controversy. 15 U.S.C. § 1226(a)(2). By its terms, the MVFCAFA applies only to "motor vehicle franchise contracts." Id. The statute does not affect arbitration agreements in other types of contracts, even if they touch on the relationship between an automobile manufacturer and a car dealership. The statute defines "motor vehicle franchise contract" as "a contract under which a motor vehicle manufacturer, importer, or distributor sells motor vehicles to any other person for resale to an ultimate purchaser and authorizes such other person to repair and service the manufacturer's motor vehicles." Id. § 1226(a)(1)(B). At oral argument, Arciniaga's counsel conceded that the complaint alleges only a breach of the Amended Stockholders Agreement and not a breach of the Dealer Agreement. Moreover, the complaint confirms that the entirety of Arciniaga and GM's dispute relates to their investment relationship, which, of course, is governed by the Amended Stockholders Agreement. The essential question, then, is whether the Amended Stockholders Agreement is a "motor vehicle franchise contract." We conclude it is not. The Amended Stockholders Agreement is not an agreement by which GM "sells motor vehicles to any other person for resale to an ultimate purchaser." Nor does the agreement authorize anyone "to repair and service" GM motor vehicles. Thus, by its plain and unambiguous language, the MVFCAFA does not apply to the Amended Stockholders Agreement. See Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) ("[A] court should presume that the statute says what it means."); see also Pride v. Ford Motor Co., 341 F.Supp.2d 617, 621 (N.D.Miss.2004) (finding that an automobile dealership investment and employment contract was not a "motor vehicle franchise contract"). Congress's decision to define separately within the statute "motor vehicle franchise contract" buttresses our reading of the plain language of the MVFCAFA. The ADDCA, of which the MVFCAFA is a part, defines "franchise" as "the written agreement or contract between any automobile manufacturer engaged in commerce and any automobile dealer which purports to fix the legal rights and liabilities of the parties to such agreement or contract." 15 U.S.C. § 1221(b). This definition is broader than the MVFCAFA's definition of "motor vehicle franchise contract." That Congress elected to separately define "motor vehicle franchise contract" instead of using a preexisting, more broadly defined, term counsels against expansively construing the more narrowly defined term. Cf. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ("[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotation marks omitted)). Arciniaga suggests two routes to circumvent the plain language of the MVFCAFA. First, he points to the legislative history of the MVFCAFA. Second, he contends that all the agreements involving himself, GM, and Bay Chevrolet should be read as one agreement. These arguments are unavailing. To be sure, as the district court recognized, some of the MVFCAFA's legislative history lends support to Arciniaga's argument. According to the Senate Judiciary Committee's report, Congress passed the statute because it was concerned that "[mjanufacturers increasingly are inserting mandatory binding arbitration clauses in non-negotiated side contracts with dealers, such as those governing dealer finance disputes." S.Rep. No. 107-266 (2002). Thus, Congress might well have been concerned about situations such as Arciniaga's. Nevertheless, Congress did not capture Arcini-aga's plight in the plain and unambiguous language of the MVFCAFA. When a statute's language is clear, our only role is to enforce that language " 'according to its terms.' " Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, — U.S. -, -, 126 S.Ct. 2455, 2459, 165 L.Ed.2d 526, - (2006) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)). We "do not resort to legislative history to cloud a statutory text that is clear" even if there are "contrary indications in the statute's legislative history." Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (internal quotations and citations omitted)). Because we have determined that the language of the MVFCAFA is clear and unambiguous, we need not — and thus do not — consider the statute's legislative history. Arciniaga's second argument is equally unavailing. He contends, based on state contract law, that all the agreements between himself, GM, and Bay Chevrolet are part of a "non-severable package," and from that package there emerges a "motor vehicle franchise contract." Resort to state law in this fashion is not unlike trying to fit the step-sister's foot into Cinderella's shoe. Such a practice would likely abandon "motor vehicle franchise contracts" to the vagaries of different states' contract laws, an outcome potentially inconsistent with the "well-recognized inter est in ensuring that federal courts interpret federal law in a uniform way." Williams v. Taylor, 529 U.S. 362, 389-390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J., concurring). In any event, we need not resolve this question. New York law governs the Amended Stockholders Agreement, while Michigan law controls the Dealer Agreement. Under both states' law, multiple agreements may be read as one contract only if the parties so intended, which we determine from the circumstances surrounding the transaction. See Rudman v. Cowles Commc'ns, Inc., 30 N.Y.2d 1, 13, 330 N.Y.S.2d 33, 280 N.E.2d 867 (1972); Macomb County Sav. Bank v. Kohlhoff, 5 Mich.App. 531, 147 N.W.2d 418, 419 (1967). The circumstances here do not evince an intent by the parties to interpret the Amended Stockholders agreement and the Dealer Agreement as one contract. First, the parties to the Amended Stockholders Agreement and the Dealer Agreement are different. The former is between Arciniaga, GM, and Bay Chevrolet while the latter is between GM and Bay Chevrolet. Cf. Rudman, 30 N.Y.2d at 13, 330 N.Y.S.2d 33, 280 N.E.2d 867 (finding that multiple contracts did not constitute one transaction because, inter alia, "the agreements involved formally different parties"); Skimin v. Fuelgas Co., 339 Mich. 523, 64 N.W.2d 666, 668-69 (1954). Second, the contracts are not mutually dependent. The Dealer Agreement is GM's standard dealership agreement, regardless of the financing of the dealership, and it does not necessarily end if the Amended Stockholders Agreement fails. Third, the agreements are separate forms and they do not refer to each other. Cf. Rudman, 30 N.Y.2d at 13, 330 N.Y.S.2d 33, 280 N.E.2d 867 ("Although form is not conclusive, that the parties entered into separate written agreements with 'separate assents' rather than a 'single assent' is influential."); Schonfeld v. Thompson, 243 A.D.2d 343, 663 N.Y.S.2d 166, 167 (1st Dep't 1997) (finding that written agreements that do not refer to each other are separate contracts); Forge v. Smith, 458 Mich. 198, 580 N.W.2d 876, 881 (1998) ("Where one writing references another instrument for additional contract terms, the two writings should be read together."). Finally, the agreements serve separate purposes. The Dealer Agreement governs the resale and servicing of GM vehicles by Bay Chevrolet (quintessential attributes of a "motor vehicle franchise contract"). The Amended Stockholders Agreement pertains to Arciniaga's and GM's investment relationship in Bay Chevrolet. Cf. Schonfeld, 663 N.Y.S.2d at 167 (agreements "serving different purposes" are not a single contract); Shirey v. Camden, 314 Mich. 128, 22 N.W.2d 98, 101 (1946). CONCLUSION Arciniaga's brief bristles with a jeremiad about "small businessmen and businesswomen" compared to "large powerful multinational automobile manufacturers." He suggests that if we reverse the district court's decision, the proverbial little guy will not get his day in court. Of course, our decision today does no such thing. Arciniaga's claims will be heard, but they will be heard in the forum he agreed to and not in the forum he bargained away. See Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. 3346 ("By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum."). For the foregoing reasons, we reverse the district court's denial of GM's motion to compel arbitration and its grant of Arci-niaga's motion to stay arbitration. The case is remanded to the district court to grant GM's motion to compel arbitration.

27 B.T.A. 1351

OPINION. Smith : The first question presented by these proceedings is whether the profit realized by each petitioner in 1928 upon the sale of shares of stock of the Brazos Oil Corporation is ordinary income taxable at both normal and surtax rates, or capital gain subject only to the 12% per cent tax. The amount of the profit in the case of each petitioner is not in dispute. Section 111 (a) of the Revenue Act of 1928 provides that "the gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the basis provided in section 113." Section 113 (a) of the act provides in part: "The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28,1913, shall be the cost of such property." Section 101 (a) of the Revenue Act of 1928 provides for a tax of 12% per cent of the amount of the capital net gain. " Capital gain " is defined in section 101 (c) (1) of the act as meaning " taxable gain from the sale or exchange of capital assets consummated after December 31,1921." " Capital assets " are defined in subdivision (8) of section 101 (c) as meaning " property held by the taxpayer for more than two years." Counsel for the petitioners makes an elaborate argument to the effect that the Brazos Oil Corporation stock sold by the petitioners in 1928 was property held by them more than two years. It is not denied, however, that the option for the purchase of the shares of stock sold in 1928 was exercised in December 1927. We think that the contention of the petitioners is entirely devoid of merit. Manifestly, if the petitioners had not exercised their option for the purchase of the shares of stock in question they would never have become the owners of it. As stated by the court in Harper v. Bibb, 47 Ala. 547: Bat where the contract gives only an option to purchase, the purchaser can not be said to hold the price in trust for the vendor; and before he has elected to become a purchaser, it is contrary to all rules of reason and good sense to accord to him the rights of ownership. The contention of the respondent that the stock was acquired by the petitioners in December 1927, at the time the option was exercised and the shares of stock purchased is sustained. The petitioners make an alternative contention that if it be held that the income reported by them in 1928 as the profit upon the sale of the Brazos Oil Corporation shares was not capital gain under section 101 of the Revenue Act of 1928, then the profit was overstated because the petitioners used as cost the option price of the stock and not its fair market value in December 1927, when the option was exercised and the stock received. The.contention of the petitioners upon this point is in short that the cost basis is not the price which the petitioners paid for their stock, but the fair market value thereof at the date of purchase. In support of this contention the petitioners rely upon the opinion of the Board in Albert Russel Erskine, 26 B. T. A. 147. The facts in that case were that the petitioner entered into an agreement to work for a corporation exclusively for a period of between four and five years. Under the contract he was to receive a- cash salary and in addition " have the right and option to buy and receive " a certain number of shares of the capital stock of the corporation upon payment to the corporation of a nominal price for the stock. The corporation purchased the shares in the open market at a cost of several times the agreed price to the petitioner and placed them in escrow subject to the terms of the agreement. In the circumstances of the case the Board held that the contract was an employment contract and that each year as the petitioner exercised the option to purchase the shares of stock at a price far below the market the petitioner received income to the extent of the difference between the price which he paid for the stock and the fair market value. The situation in the instant proceedings is far different. There is no evidence here that the option price was less than the fair market price in 1922. In fact when there was a modification of the contract in 1926, the corporation recognized that the option price was in excess of the value of the stock in 1922 and voluntarily reduced the price from $2.56 per share to $2 per share. The ErsMne case is distinguishable upon its facts. The petitioners further refer to the case of Boulton v. Heiner, decided by the United States District Court, Western District of Pennsylvania, on November 5, 1932, at paragraph 2017 of the Prentice Hall 1932 Federal Tax Service. It was held by the court that, where a taxpayer obtained an option for the purchase of shares of stock at a given price under an agreement to serve the corporation for a number of years without salary, the cost of the stock to the taxpayer was the price paid for it plus the value of the services rendered by the taxpayer. The facts in the instant case do not show the value, if any, of the services performed by the petitioners to the corporations which they served over the amounts paid to them as salaries for their services. The statute plainly states that upon the sale of property acquired subsequent to February 28, 1913, the basis for the determination of the gain or loss shall be the cost of such property. We can not determine from the evidence of record that the cost of the shares of the Brazos Oil Corporation stock sold by the petitioners in 1928 was in excess of $2 per share, the price which they actually paid for the stock. It is clear also that the stock was not held by them for as long as two years at the date of sale. The stock was sold in 1928 and acquired by the petitioners in 1927. The profits realized were clearly taxable as ordinary income and not at the rate of 12% per centum provided by section 101 of the Bevenue Act of 1928. The second question for our determination is whether the petitioners are liable to the negligence penalty provided by section 293 (a) of the Bevenue Act of 1928, which reads: SEO. 2 93. ADDITIONS TO THE TAX IN CASE OK DEFICIENCY. (a) Negligence. — If any part of any deficiency is due to negligence or intentional disregard of rules and regulations but without intent to defraud, 5 per centum of the total amount of the deficiency (in addition to such deficiency) shall be assessed, collected, and paid in the same manner as if it were a deficiency, except that the provisions of section 272 (i), relating to the prorating of a deficiency, and of section 292, relating to interest on deficiencies, shall not be applicable. The respondent makes the claim for the penalty upon the ground that the petitioners clearly had no ownership of the shares of stock which were sold in 1928 until they bought them in 1927; that in their return they did not set forth the circumstances under which they acquired the stock, but reported that they acquired it in 1922; and that there was nothing shown by the returns from which the respondent could have ascertained that the profit was not taxable as a capital net gain. The petitioners claim that their returns were made by certified public accountants and the certified public accountants were fully informed of the circumstances of the transaction and they assumed that the returns were made out in accordance with the law. We are of the opinion that the petitioners are liable to the negligence penalty claimed by the respondent. As we see it there was no ground for any contention that the petitioners had " held " the stock in question for a period of more than two years at the date of sale. Each petitioner is charged with a knowledge of the law and clearly the requirement of the law with respect to capital gain is shown on the return form. In our opinion the petitioners are liable for the negligence penalty provided in section 293 (a) of the Revenue Act of 1928. Cf. Edmond A. Hughes, 27 B. T. A. 1022.

327 U.S. 766

Joseph, present Comptroller, and Young, present Treasurer, substituted as parties petitioner on motion of Isaac C. Donner, counsel for the petitioners.

528 U.S. 1123

Super. Ct. Pa. Certiorari denied.

408 U.S. 930

Sup. Ct. Haw. Motions to dispense with printing petition and brief in opposition granted. Certiorari denied.

510 U.S. 903

C. A. 4th Cir. Certiorari denied.

562 U.S. 1229

C. A. 6th Cir. Certiorari denied.

349 U.S. 921

District Court of Appeal of California, Fourth Appellate District. Certiorari denied. John W. Howard for petitioners.

543 U.S. 1093

C. A. 3d Cir. Certiorari denied.

534 U.S. 1098

C. A. 5th Cir. Certiorari denied.

396 U.S. 955

Dist. Ct. App. Fla., 3d Dist. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.

562 U.S. 855

C. A. 3d Cir. Certiorari denied.

540 U.S. 1136

C. A. 4th Cir. Certiorari denied.

504 U.S. 191

Justice Blackmun announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice Kennedy join. Twenty-six years ago, this Court, in a majority opinion written by Justice Hugo L. Black, struck down a state law that made it a crime for a newspaper editor to publish an editorial on election day urging readers to vote in a particular way. Mills v. Alabama, 384 U. S. 214 (1966). While the Court did not hesitate to denounce the statute as an "obvious and flagrant abridgment" of First Amendment rights, id., at 219, it was quick to point out that its holding "in no way involve[d] the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there," id., at 218. Today, we confront the issue carefully left open in Mills. The question presented is whether a provision of the Tennessee Code, which prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place, violates the First and Fourteenth Amendments. I The State of Tennessee has carved out an election-day "campaign-free zone" through §2-7-111(b) of its election code. That section reads in pertinent part: "Within the appropriate boundary as established in subsection (a) [100 feet from the entrances], and the building in which the polling place is located, the display of campaign posters, signs or other campaign materials, distribution of campaign matérials, and solicitation of votes for or against any person or political party or posi tion on a question are prohibited." Tenn. Code Ann. §2-7-111(b) (Supp. 1991). Violation of §2-7-111(b) is a Class C misdemeanor punishable by a term of imprisonment not greater than 30 days or a fine not to exceed $50, or both. Tenn. Code Ann. §2—19—119 and 40-35-111(e)(3) (1990). III Respondent Mary Rebecca Freeman has been a candidate for office in Tennessee, has managed local campaigns, and has worked actively in statewide elections. In 1987, she was the treasurer for the campaign of a city-council candidate in Metropolitan Nashville-Davidson County. Asserting that § § 2—7—111 (b) and 2-19-119 limited her ability to communicate with voters, respondent brought a facial challenge to these statutes in Davidson County Chancery Court. She sought a declaratory judgment that the provisions were unconstitutional under both the United States and the Tennessee Constitutions. She also sought a permanent injunction against their enforcement. The Chancellor ruled that the statutes did not violate the United States or Tennessee Constitutions and dismissed respondent's suit. App. 50. He determined that §2-7-111(b) was a content-neutral and reasonable time, place, and manner restriction; that the 100-foot boundary served a compelling state interest in protecting voters from interference, ha rassment, and intimidation during the voting process; and that there was an alternative channel for respondent to exercise her free speech rights outside the 100-foot boundary. App. to Pet. for Cert. 1a. The Tennessee Supreme Court, by a 4-to-1 vote, reversed. 802 S. W. 2d 210 (1990). The court first held that §2-7-111(b) was content based "because it regulates a specific subject matter, the solicitation of votes and the display or distribution of campaign materials, and a certain category of speakers, campaign workers." Id., at 213. The court then held that such a content-based statute could not be upheld unless (i) the burden placed on free speech rights is justified by a compelling state interest and (ii) the means chosen bear a substantial relation to that interest and are the least intrusive to achieve the State's goals. While the Tennessee Supreme Court found that the State unquestionably had shown a compelling interest in banning solicitation of voters and distribution of campaign materials within the polling place itself, it concluded that the State had not shown a compelling interest in regulating the premises around the polling place. Accordingly, the court held that the 100-foot limit was not narrowly tailored to protect the demonstrated interest. The court also held that the statute was not the least restrictive means to serve the State's interests. The court found less restrictive the current Tennessee statutes prohibiting interference with an election or the use of violence or intimidation to prevent voting. See Tenn. Code Ann. §2-19-101 and 2-19-115 (Supp. 1991). Finally, the court noted that if the State were able to show a compelling interest in preventing congestion and disruption at the entrances to polling places, a shorter radius "might perhaps pass constitutional muster." 802 S. W. 2d, at 214. Because of the importance of the issue, we granted certiorari. 499 U. S. 958 (1991). We now reverse the Tennessee Supreme Court's judgment that the statute violates the First Amendment of the United States Constitution. Ill The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech . . . This Court in Thornhill v. Alabama, 310 U. S. 88, 95 (1940), said: "The freedom of speech . . . which [is] secured by the First Amendment against abridgment by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State." The Tennessee statute implicates three central concerns in our First Amendment jurisprudence: regulation of political speech, regulation of speech in a public forum, and regulation based on the content of the speech. The speech restricted by § 2-7-111(b) obviously is political speech. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Mills v. Alabama, 384 U. S., at 218. "For speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, this Court has recognized that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)). The second important feature of § 2-7-111(b) is that it bars speech in quintessential public forums. These forums include those places "which by long tradition or by government fiat have been devoted to assembly and debate," such as parks, streets, and sidewalks. Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983). "Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. CIO, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.). At the same time, however, expressive activity, even in a quintessential public forum, may interfere with other important activities for which the property is used. Accordingly, this Court has held that the government may regulate the time, place, and manner of the expressive activity, so long as such restrictions are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication. United States v. Grace, 461 U. S. 171, 177 (1983). See also Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989). The Tennessee restriction under consideration, however, is not a facially content-neutral time, place, or manner restriction. Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign. The statute does not reach other categories of speech, such as commercial solicitation, distribution, and display. This Court has held that the First Amendment's hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic. See, e. g., Consolidated Edison Co. of N. Y. v. Public Service Comm'n of N. Y., 447 U. S. 530, 537 (1980). Accord, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991) (statute restricting speech about crime is content based). As a facially content-based restriction on political speech in a public forum, § 2—7—111(b) must be subjected to exacting scrutiny: The State must show that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S., at 45. Accord, Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 573 (1987); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985); United States v. Grace, 461 U. S., at 177. Despite the ritualistic ease with which we state this now-familiar standard, its announcement does not allow us to avoid the truly difficult issues involving the First Amendment. Perhaps foremost among these serious issues are cases that force us to reconcile our commitment to free speech with our commitment to other constitutional rights embodied in government proceedings. See, e. g., Sheppard v. Maxwell, 384 U. S. 333, 361-363 (1966) (outlining restrictions on speech of trial participants that courts may impose to protect an accused's right to a fair trial). This case presents us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote — a right at the heart of our democracy. IV Tennessee asserts that its campaign-free zone serves two compelling, interests. First, the State argues that its regulation serves its compelling interest in protecting the right of its citizens to vote freely for the candidates of their choice. Second, Tennessee argues that its restriction protects the right to vote in an election conducted with integrity and reliability. The interests advanced by Tennessee obviously are compelling ones. This Court has recognized that the "right to vote freely for the candidate of one's choice is of the essence of a democratic society." Reynolds v. Sims, 377 U. S. 533, 555 (1964). Indeed, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U. S. 1, 17 (1964). Accordingly, this Court has concluded that a State has a compelling interest in protecting voters from confusion and undue influence. See Eu, 489 U. S., at 228-229. The Court also has recognized that a State "indisputably has a compelling interest in preserving the integrity of its election process." Id., at 231. The Court thus has "upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9 (1983) (collecting cases). In other words, it has recognized that a State has a compelling interest in ensuring that an individual's right to vote is not undermined by fraud in the election process. To survive strict scrutiny, however, a State must do more than assert a compelling state interest — it must demonstrate that its law is necessary to serve the asserted interest. While we readily acknowledge that a law rarely survives such scrutiny, an examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places. During the colonial period, many government officials were elected by the viva voce method or by the showing of hands, as was the custom in most parts of Europe. That voting scheme was not a private affair, but an open, public decision, witnessed by all and improperly influenced by some. The opportunities that the viva voce system gave for bribery and intimidation gradually led to its repeal. See generally E. Evans, A History of the Australian Ballot System in the United States 1-6 (1917) (Evans); J. Harris, Election Administration in the United States 15-16 (1934) (Harris); J. Rusk, The Effect of the Australian Ballot Reform on Split Ticket Voting: 1876-1908, pp. 8-11 (1968) (Rusk). Within 20 years of the formation of the Union, most States had incorporated the paper ballot into their electoral system. Initially, this paper ballot was a vast improvement. Individual voters made their own handwritten ballots, marked them in the privacy of their homes, and then brought them to the polls for counting. But the effort of making out such a ballot became increasingly more complex and cumbersome. See generally S. Albright, The American Ballot 14-19 (1942) (Albright); Evans 5; Rusk 9-14. Wishing to gain influence, political parties began to produce their own ballots for voters. These ballots were often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance. State attempts to standardize the ballots were easily thwarted — the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box. Thus, the evils associated with the earlier viva voce system reinfected the election process; the failure of the law to secure secrecy opened the door to bribery and intimidation. See generally Albright 19-20; Evans 7, 11; Harris 17, 151-152; V. Key, Politics, Parties, and Pressure Groups 649 (1952); J. Reynolds, Testing Democracy: Electoral Behavior and Progressive Reform in New Jersey, 1880-1920, p. 36 (1988); Rusk 14-23. Approaching the polling place under this system was akin to entering an open auction place. As the elector started his journey to the polls, he was met by various party ticket peddlers "who were only too anxious to supply him with their party tickets." Evans 9. Often the competition became heated when several such peddlers found an uncommitted or wavering voter. See L. Fredman, The Australian Ballot: The Story of an American Reform 24 (1968) (Fredman); Rusk 17. Sham battles were frequently engaged in to keep away elderly and timid voters of the opposition. See Fredman 24, 26-27; 143 North American Review 628-629 (1886) (cited in Evans 16). In short, these early elections "were not a very pleasant spectacle for those who believed in democratic government." Id., at 10. The problems with voter intimidation and election fraud that the United States was experiencing were not unique. Several other countries were attempting to work out satisfactory solutions to these same problems. Some Australian provinces adopted a series of reforms intended to secure the secrecy of an elector's vote. The most famous feature of the Australian system was its provision for an official ballot, encompassing all candidates of all parties on the same ticket. But this was not the only measure adopted to preserve the secrecy of the ballot. The Australian system also provided for the erection of polling booths (containing several voting compartments) open only to election officials, two "scruti-nees" for each candidate, and electors about to vote. See J. Wigmore, The Australian Ballot System as Embodied in the Legislation of Various Countries 69, 71, 78, 79 (1889) (Wigmore) (excerpting provisions adopted by South Australia and Queensland). See generally Albright 23; Evans 17; Rusk 23-24. The Australian system was enacted in England in 1872 after a study by the committee of election practices identified Australia's ballot as the best possible remedy for the existing situation. See Wigmore 14-16. Belgium followed Eng land's example in 1877. Like the Australian provinces, both England and Belgium excluded the general public from the entire polling room. See Wigmore 94, 105. See generally Albright 23-24; Evans 17-18; Rusk 24-25. One of the earliest indications of the reform movement in this country came in 1882 when the Philadelphia Civil Service Reform Association urged its adoption in a pamphlet entitled "English Elections." Many articles were written praising its usefulness in preventing bribery, intimidation, disorder, and inefficiency at the polls. Commentators argued that it would diminish the growing evil of bribery by removing the knowledge of whether it had been successful. Another argument strongly urged in favor of the reform was that it would protect the weak and dependent against intimidation and coercion by employers and creditors. The inability to determine the effectiveness of bribery and intimidation accordingly would create order and decency at the polls. See generally Albright 24-26; Evans 21-23; Rusk 25-29, 42-43. After several failed attempts to adopt the Australian system in Michigan and Wisconsin, the Louisville, Kentucky, municipal government, the Commonwealth of Massachusetts, and the State of New York adopted the Australian system in 1888. The Louisville law prohibited all but voters, candidates or their agents, and electors from coming within 50 feet of the voting room inclosure. The Louisville law also provided that candidates' agents within the restricted area "were not allowed to persuade, influence, or intimidate any one in the choice of his candidate, or to attempt doing so . Wigmore 120. The Massachusetts and New York laws differed somewhat from the previous Acts in that they excluded the general public only from the area encompassed within a guardrail constructed six feet from the voting compartments. See id., at 47, 128. This modification was considered an improvement because it provided additional monitoring by members of the general public and independent candidates, who in most States were not allowed to be represented by separate inspectors. Otherwise, "in order to perpetrate almost every election fraud it would only be necessary to buy up the election officers of the other party." Id., at 52. Finally, New York also prohibited any person from "electioneering on election day within any polling-place, or within one hundred feet of any polling place." Id., at 131. See generally Evans 18-21; Rusk 26. The success achieved through these reforms was immediately noticed and widely praised. See generally Evans 21-24; Rusk 26-31, 42-43. One commentator remarked of the New York law of 1888: "We have secured secrecy; and intimidation by employers, party bosses, police officers, saloonkeepers and others has come to an end. "In earlier times our polling places were frequently, to quote the litany, 'scenes of battle, murder, and sudden death.' This also has come to an end, and until nightfall, when the jubilation begins, our election days are now as peaceful as our Sabbaths. "The new legislation has also rendered impossible the old methods of frank, hardy, straightforward and shameless bribery of voters at the polls." W. Ivins, The Electoral System of the State of New York, Proceedings of the 29th Annual Meeting of the New York State Bar Association 316 (1906). The triumphs of 1888 set off a rapid and widespread adoption of the Australian system in the United States. By 1896, almost 90 percent of the States had adopted the Australian system. This accounted for 92 percent of the national electorate. See Rusk 30-31. See also Albright 26-28; Evans 27; post, at 215, n. 1 (Scalia, J., concurring in judgment) (citations to statutes passed before 1900). The roots of Tennessee's regulation can be traced back to two provisions passed during this period of rapid reform. Tennessee passed the first relevant provision in 1890 as part of its switch to an Australian system. In its effort to "se-cur[e] the purity of elections," Tennessee provided that only voters and certain election officials were permitted within the room where the election was held or within 50 feet of the entrance. The Act did not provide any penalty for violation and applied only in the more highly populated counties and cities. 1890 Tenn. Pub. Acts, ch. 24, §12 and 13. The second relevant provision was passed in 1901 as an amendment to Tennessee's "Act to preserve the purity of elections, and define and punish offenses against the elective franchise." The original Act, passed in 1897, made it a misdemeanor to commit various election offenses, including the use of bribery, violence, or intimidation in order to induce a person to vote or refrain from voting for any particular person or measure. 1897 Tenn. Pub. Acts, ch. 14. The 1901 amendment made it a misdemeanor for any person, except the officers holding the elections, to approach nearer than 30 feet to any voter or ballot box. This provision applied to all Tennessee elections. 1901 Tenn. Pub. Acts, ch. 142. These two laws remained relatively unchanged until 1967, when Tennessee added yet another proscription to its secret ballot law. This amendment prohibited the distribution of campaign literature "on the same floor of a building, or within one hundred (100) feet thereof, where an election is in progress." 1967 Tenn. Pub. Acts, ch. 85. In 1972, the State enacted a comprehensive code to regulate the conduct of elections. The code included a section that proscribed the display and the distribution of campaign material and the solicitation of votes within 100 feet of the entrance to a polling place. The 1972 "campaign-free zone" is the direct precursor of the restriction challenged in the present litigation. Today, all 50 States limit access to the areas in or around polling places. See App. to Pet. for Cert. 26a-50a; Note, Defoliating the Grassroots: Election Day Restrictions on Political Speech, 77 Geo. L. J. 2137 (1989) (summarizing statutes as of 1989). The National Labor Relations Board also limits activities at or near polling places in union-representation elections. In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interests in preventing voter intimidation and election fraud. Respondent and the dissent advance three principal challenges to this conclusion. First, respondent argues that restricted zones are overinclusive because States could secure these same compelling interests with statutes that make it a misdemeanor to interfere with an election or to use violence or intimidation to prevent voting. See, e. g., Tenn. Code Ann. §2-19-101 and 2-19-115 (Supp. 1991). We are not persuaded. Intimidation and interference laws fall short of serving a State's compelling interests because they "deal with only the most blatant and specific attempts" to impede elections. Cf. Buckley v. Valeo, 424 U. S. 1, 28 (1976) (existence of bribery statute does not preclude need for limits on contributions to political campaigns). Moreover, because law enforcement officers generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process, see Tenn. Code Ann. §2-7-103 (1986), many acts of interference would go undetected. These undetected or less than blatant acts may nonetheless drive the voter away before remedial action can be taken. Second, respondent and the dissent argue that Tennessee's statute is underinclusive because it does not restrict other types of speech, such as charitable and commercial solicitation or exit polling, within the 100-foot zone. We agree that distinguishing among types of speech requires that the statute be subjected to strict scrutiny. We do not, however, agree that the failure to regulate all speech renders the statute fatally underinclusive. In fact, as one early commentator pointed out, allowing members of the general public access to the polling place makes it more difficult for political machines to buy off all the monitors. See Wigmore 62. But regardless of the need for such additional monitoring, there is, as summarized above, ample evidence that political candidates have used campaign workers to commit voter intimidation or electoral fraud. In contrast, there is simply no evidence that political candidates have used other forms of solicitation or exit polling to commit such electoral abuses. States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist. Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissent's contention, the link between ballot secrecy and some restricted zone surrounding the voting area is not merely timing — it is common sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter. Accordingly, we hold that some restricted zone around the voting area is necessary to secure the State's compelling interest. The real question then is how large a restricted zone is permissible or sufficiently tailored. Respondent and the dissent argue that Tennessee's 100-foot boundary is not narrowly' drawn to achieve the State's compelling interest in protecting the right to vote. We disagree. As a preliminary matter, the long, uninterrupted, and prevalent use of these statutes makes it difficult for States to come forward with the sort of proof the dissent wishes to require. The majority of these laws were adopted originally in the 1890's, long before States engaged in extensive legislative hearings on election regulations. The prevalence of these laws, both here and abroad, then encouraged their reenactment without much comment. The fact that these laws have been in effect for a long period of time also makes it difficult for the States to put on witnesses who can testify as to what would happen without them. Finally, it is difficult to isolate the exact effect of these laws on voter intimidation and election fraud. Voter intimidation and election fraud are successful precisely because they are difficult to detect. Furthermore, because a government has such a compelling interest in securing the right to vote freely and effectively, this Court never has held a State "to the burden of demonstrating empirically the objective effects on political stability that [are] produced" by the voting regulation in question. Munro v. Socialist Workers Party, 479 U. S. 189, 195 (1986). Elections vary from year to year,, and place to place. It is therefore difficult to make specific findings about the effects of a voting regulation. Moreover,, the remedy for a tainted election is an imperfect one. Rerunning an election would have a negative impact on voter turnout. Thus, requiring proof that, a 100-foot boundary is perfectly tailored to deal with voter intimidation and election fraud "would necessitate that a State's political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights." Id., at 195-196 (emphasis added). We do not think that the minor geographic limitation prescribed by §2-7-111(b) constitutes such a significant impingement. Thus, we simply do not view the question whether the 100-foot boundary line could be somewhat tighter as a question of "constitutional dimension." Id., at 197. Reducing the boundary to 25 feet, as suggested by the Tennessee Supreme Court, 802 S. W. 2d, at 214, is a difference only in degree, not a less restrictive alternative in kind. Buckley v. Valeo, 424 U. S., at 30. As was pointed out in the dissenting opinion in the Tennessee Supreme Court, it "takes approximately 15 seconds to walk 75 feet." 802 S. W. 2d, at 215. The State of Tennessee has decided that these last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible. We do not find that this is an unconstitutional choice. At some measurable distance from the polls, of course, governmental regulation of vote solicitation could effectively become an impermissible burden akin to the statute struck down in Mills v. Alabama, 384 U. S. 214 (1966). See also Meyer v. Grant, 486 U. S. 414 (1988) (invalidating absolute bar against the use of paid circulators). In reviewing challenges to specific provisions of a State's election laws, however, this Court has not employed any " 'litmus-paper test' that will separate valid from invalid restrictions." Anderson v. Celebrezze, 460 U. S., at 789 (quoting Storer v. Brown, 415 U. S. 724, 730 (1974)). Accordingly, it is sufficient to say that in establishing a 100-foot boundary, Tennessee is on the constitutional side of the line. In conclusion, we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny. This, however, is such a rare case. Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise. The judgment of the Tennessee Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. Section 2-7-111(a) also provides for boundaries of 300 feet for counties within specified population ranges. Petitioner's predecessor Attorney General (an original defendant) opined that this distinction was unconstitutional under Art. XI, § 8, of the Tennessee Constitution. Tenn. Op. Atty. Gen. No. 87-185 (1987). While this issue was raised in the pleadings, the District Court held that respondent did not have standing to challenge the 300-foot boundaries because she was not a resident of any of those counties. The Tennessee Supreme Court did not reach the issue. Accordingly, the constitutionality of the 100-foot boundary is the only restriction before us. Testimony at trial established that at some Tennessee polling locations the campaign-free zone included sidewalks and streets adjacent to the polling places. See App. 23-24, 42. See also 802 S. W. 2d 210, 213 (1990). Content-based restrictions also have been held to raise Fourteenth Amendment equal protection concerns because, in the course of regulating speech, such restrictions differentiate between types of speech. See Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972) (exemption of labor picketing from ban on picketing near schools violates Fourteenth Amendment right to equal protection). See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 816 (1984) (suggesting that exception for political campaign signs from general ordinance prohibiting posting of signs might entail constitutionally forbidden content discrimina tion). Under either a free speech or equal protection theory, a content-based regulation of political speech in a public forum is valid only if it can survive strict scrutiny. Carey v. Brown, 447 U. S. 455, 461-462 (1980). See Piper v. Swan, 319 F. Supp. 908, 911 (ED Term. 1970) (purpose of regulation is to prevent intimidation of voters entering the polling place by political workers), writ of mandamus denied sub nom. Piper v. United States District Court, 401 U. S. 971 (1971). See Tennessee Law Revision Commission, Special Report of the Law Revision Commission to Eighty-Seventh General Assembly of Tennessee Concerning a Bill to Adopt an Elections Act Containing a Unified and Coherent Treatment of All Elections 13 (1972) (provision is one of numerous safeguards included to preserve "purity of elections"). One writer described the conditions as follows: "This sounds like exaggeration, but it is truth; and these are facts so notorious that no one acquainted with the conduct of recent elections now attempts a denial — that the raising of colossal sums for the purpose of bribery has been rewarded by promotion to the highest offices in the Government; that systematic organization for the purchase of votes, individually and in blocks, at the polls, has become a recognized factor in the machinery of the parties; that the number of voters who demand money compensation for their ballots has grown greater with each recurring election." J. Gordon, The Protection of Suffrage 13 (1891) (quoted in Evans 11). Evans reports that the bribery of voters in Indiana in 1880 and 1888 was sufficient to determine the results of the election and that "[m]any electors, aware that the corrupt element was large enough to be able to turn the election, held aloof altogether." Ibid. According to a report of a committee of the 46th Congress, men were frequently marched or carried to the polls in their employers' carriages. They were then furnished with ballots and compelled to hold their hands up with their ballots in them so they could easily be watched until the ballots were dropped into the box. S. Rep. No. 497, 46th Cong., 2d Sess., 9-10 (1880). Evans recounted that intimidation, particularly by employers, was "extensively practiced": "Many labor men were afraid to vote and remained away from the polls. Others who voted against their employers' wishes frequently lost their jobs. If the employee lived in a factory town, he probably lived in a tenement owned by the company, and possibly his wife and children worked in the mill. If he voted against the wishes of the mill-owners, he and his family were thrown out of the mill, out of the tenement, and out of the means of earning a livelihood. Frequently the owner and the manager of the mill stood at the entrance of the polling-place and closely observed the employees while they voted. In this condition, it cannot be said that the workingmen exercised any real choice." Evans 12-13 (footnote omitted). Similar results were achieved with the Massachusetts law: "Quiet, order, and cleanliness reign in and about the polling-places. I have visited precincts where, under the old system, coats were torn off the backs of voters, where ballots of one kind have been snatched from voters' hands and others put in- their places, with threats against using any but the substituted ballots; and under the new system all was orderly and peaceable." 2 Annals of the American Academy.of Political and Social Science 738 (1892). See, e. g., Season-All Industries, Inc. v. NLRB, 664 F. 2d 932 (CA3 1981); NLRB v. Carroll Contracting and Ready-Mix, Inc., 636 F. 2d 111 (CA5 1981); Midwest Stock Exchange, Inc. v. NLRB, 620 F. 2d 629 (CA7), cert. denied, 449 U. S. 873 (1980); Michem, Inc., 170 N. L. R. B. 362 (1968); Claussen Baking Co., 134 N. L. R. B. 111 (1961). The logical connection between ballot secrecy and restricted zones distinguishes this case from those cited by the dissent in which the Court struck down longstanding election regulations. In those cases, there was no rational connection between the asserted interest and the regulation. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 666 (1966) ("Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax"). This modified "burden of proof" does not apply to all cases in which there is a conflict between First Amendment rights and a State's election process — instead, it applies only when the First Amendment right threatens to interfere with the act of voting itself, i. e., cases involving voter confusion from overcrowded ballots, like Munro, or cases such as this one, in which the challenged activity physically interferes with electors attempting to cast their ballots. Thus, for example, States must come forward with more specific findings to support regulations directed at intangible "influence," such as the ban on election-day editorials struck down in Mills v. Alabama, 384 U. S. 214 (1966). The dissent argues that our unwillingness to require more specific findings is in tension with Sheppard v. Maxwell, 384 U. S. 333 (1966), another case in which there was conflict between two constitutional rights. Trials do not, however, present the same evidentiary or remedial problems. Because the judge is concerned only with the trial before him, it is much easier to make specific findings. And while the remedy of rerunning a trial is an onerous one, it does not suffer from the imperfections of a rescheduled election. Nonetheless, even in the fair trial context, we reaffirmed that, given the importance of the countervailing right, " 'our system of law has always endeavored to prevent even the probability of unfairness.'" Id., at 352 (quoting In re Murchison, 349 U. S. 133, 136 (1955)) (emphasis added). Respondent also raises two more specific challenges to the tailoring of the Tennessee statute. First, she contends that there may be some polling places so situated that the 100-foot boundary falls in or on the other side of a highway. Second, respondent argues that the inclusion of quintessential public forums in some campaign-free zones could result in the prosecution of an individual for driving by in an automobile with a campaign bumper sticker. At oral argument, petitioner denied that the statute would reach this latter, inadvertent conduct, since this would not constitute "display" of campaign material. Tr. of Oral Arg. 33-35. In any event, these arguments are "as applied" challenges that should be made by an individual prosecuted for such conduct. If successful, these challenges would call for a limiting construction rather than a facial invalidation. In the absence of any factual record to support respondent's contention that the statute has been applied to reach such circumstances, we do not entertain the challenges in this case.

513 U.S. 984

Disbarment entered. [For earlier order herein, see 512 U. S. 1276.]

529 U.S. 1058

C. A. 9th Cir. Certiorari denied.

6 Cust. Ct. 267

EvaNS, Judge: This matter comes before the court on a motion to amend the protests which were filed at the port of Honolulu. The protests are identical and are as follows: Sir: Protest is hereby made against the exaction by you or the collector of internal revenue, of alleged Compensating taxes on imported merchandise covered by entries specified below, under sec. 15 (e), and other sections of the Agricultural Adjustment Act of May 12, 1933. Such exaction, also your refusal to permit entry or delivery of this merchandise except upon payment of said tax, is illegal for the following reasons: 1. The act of May 12, 1933, and the regulations relating thereto are invalid and void, being in violation of article 1, secs. 1 and 8, and other provisions of the Constitution, because based on an unconstitutional delegation of power to an executive officer and because the taxes were not collected for the benefit of the general government. 2. The collection of the tax is illegal because it does not tend to accomplish the policy of said act or because the tax was levied under authority of sec. 15 (d) on articles or commodities which do not compete with basic commodities, or the competition is not disadvantageous to said basic commodities. 3. There was no processing tax legally in effect with respect to this commodity at the time of importation: 4. The assessment was made on articles not wholly or in chief value of basic or competing commodity. 5. The compensating tax exceeds the processing tax, or on other grounds the amount exacted exceeds that required or authorized by said act. 6. The merchandise is taxable only at the appropriate rates provided by the tariff act of 1930. Protest 792692-G was filed November 27, 1935, and protest 838723-G, October 27, 1936. Each of these protests was suspended until March 6, 1940, at which time motions to amend were filed and time for briefs granted. After the briefs had been filed further action was suspended awaiting the outcome of the case of Max Sandherr, Inc. v. United States, C. D. 356. The last-cited case has been tried on the merits and not yet decided. As noted above, the importer filed an amendment to the protest in each case to include a claim in the following language: The sugar covered by this protest is dutiable at 40 percent under par. 506 (confectionery). At the call of the docket at San Francisco, the following proceedings were had: Mr. Tuttle. I abandon the protest so far as the A. A. A. is concerned. Mr. Weil. I don't see any other claims here except the A. A. A. Mr. Tuttle. The protest is an A. A. A. protest, that is, relating to an assessment under the Agricultural Adjustment Act. The reason we do not wish to abandon the claim is that the assessment under A. A. A. was on brown sugar, as to which we desire by amendment to raise a question of classification under the Tariff Act of 1930. In other words it is the same merchandise as was covered by the protest by virtue of the A. A. A. If the court orders it submitted so far as the A. A. A. portion is concerned that act may, of course, cancel the entire document. For that reason we wish either an opportunity later in this case to offer an amendment or to request a continuance, and the purpose of the continuance would be that at a subsequent session of the court we would offer an amendment. Mr. Weil. The only claim that I can see is the A. A. A. That means that the court is without jurisdiction. I can see Mr. Tuttle's position wherein if your Honor acts and dismisses the protest on the ground that the court has not jurisdiction he won't have an opportunity to raise any other question. I submit that he is not entitled to amend the protest. It is bad in the first instance. You can't make a bad protest good. Mr. Tijttle. The protest relates to sugar, some kind of tax on sugar. As to that merchandise we wish to make a different claim by amendment. You have before you right now a protest which is broader, and while it may be subject to dismissal for failure of prosecution or because the court may think you haven't jurisdiction on the claim which exists now, yet an amendment making the claim under the Tariff Act would dispose of the question of jurisdiction, which was taken away by the Revenue Act of 1936. Mr. Weil. No, your Honor, because then in effect they would be filing a protest after 60 days. Judge Dallinger. I am going to pass this case, with the understanding that before we leave San Francisco there is going to be something before us. We will just pass it. San Francisco, Calif., March 9, 1940. Mr. Charles F. Lawrence. I move to amend the protest by adding the further claim that the sugar is dutiable at 40% under paragraph 506, as confectionery. Mr. Weil. In view of the fact that the sole claim in the original protest is under the A. A. A. the Government renews its motion to dismiss upon the ground that the court is without jurisdiction in the first instance, and if the court desires the Government would like to file a brief as to the right to amend. Judge Dallinger. I will reserve my decision on the motion to amend and on the motion to dismiss, and ask both sides to brief the question whether a protest that only has a claim under which the court has no jurisdiction can be amended. The case will be continued. Mr. Weil. May I suggest that the briefs be filed concurrently. Judge Dallinger. Briefs will be filed concurrently on or before June 10th. Subsequent thereto and at some date wbicb we are unable to determine, Judge Dallinger granted the motion to amend. Rule 9 (2) of the Court's Rules provides in part as follows: motions made to amend protests on calendars at ports other than New York, if objection is made thereto, may be passed upon by the judge presiding subject to the approval of the majority of the division having jurisdiction of the subject matter. Pursuant to this provision we record the following observations and rulings on said motion. If we accept importer's counsel's statement that he abandoned the protest-so far as the Agricultural Adjustment Act is concerned, was there anything left by way of a protest that could be amended? When Congress enacted section 905 of title VII of the Internal Revenue Act of 1936, which provided. The United States Customs Court shall not have jurisdiction of any such cases. [Cases arising under the Agricultural Adjustment Act.] did any controversy remain witbin tbe jurisdiction of tbis court under _ tbe aforesaid protests? It is our opinion tbat tbe protest asserts no justiciable claim except tbat tbe. tax collected under tbe Agricultural Adjustment Act of May 12, 1933, was illegal, altbougb in importer's reply brief be makes tbe point tbat by tbe amendment be seeks to clarify tbe statement No,. 6 in bis protest wbicb reads as follows: The merchandise is taxable only at the appropriate rates provided by the tariff act of 1930. It seems to us that this is only another way of stating tbat tbe Agricultural Adjustment Act taxes were unlawfully assessed. It does not allege any claim under tbe Tariff Act of 1930. Does such an allegation meet tbe test governing tbe sufficiency of protests? In tbe recent case of Raybestos Manhattan, Inc. v. United States, 27 C. C. P. A. (Customs) 340 at 350, C. A. D. 109, tbe learned court states: The test always is, Does the protest, reasonably construed, distinctly and specifically set forth-the reasons for the importer's objection to the liquidation by the collector? This statement epitomizes tbe long established rule governing tbe requisites of a protest. Tbe allegation tbat tbe merchandise is taxable only at tbe appropriate fate provided by tbe tariff act falls far short of complying with tbe rule. Measured by tbe standard pointed out, there is no other claim set forth in the' protests except tbat of tbe illegality of tbe assessment of processing taxes on tbe merchandise involved. Tbe importer having •abandoned tbat claim there is nothing to wbicb an amendment could attach. Regardless'of the action of importer's attorney, we think tbe second qüestion above stated must be answered in tbe negative. When 'Congress deprived tbis court of a jurisdiction wbicb it bad formerly 'exercised it was as though tbe case bad been entirely removed from our files insofar as our right to make further orders except to clear -the record of tbe case was concerned. . ' • Tbe importer's attorney logically argues tbat The cause of action arises from the act of the collector in exacting a certain amount of duty; the various elements entering into the determination of that amount are but phases of the cause of action or items of damage, which taken collectively, determine the total liability emerging from the cause of action. 'This is in line with the finding of tbe Supreme Court in tbe case of Friederichsen v. Renard, 247 U. S. 207, 62 L. ed. 1075, where it was held tbat tbe cause of action is tbe wrong done, not tbe measure of compensation for it or tbe character of the relief sought; and, con sidered as a matter of substance, a change in tbe statement of that wrong in an amended petition cannot, in any just sense, be considered a new or different cause of action. Tbe only trouble witb tbe plaintiff's situation is that' at tbe time be endeavored to file "a change of statement" concerning tbe wrong claimed to have been committed, tbe original cause bad been removed from tbe jurisdiction of tbe court by act of Congress. No one would contend that on March 6, 1940, tbe statute of limitations bad not. run against tbe filing of a protest claiming that tbe sugar involved in tbe merchandise was dutiable at 40 per centum under paragraph 506 of tbe Tariff Act of 1930. : Tbe original case having been taken from tbe court, as noted, bow could it be possible for this court to accept an amendment to a cause of action that bad been transferred to another jurisdiction? This case is not within tbe category of those cases where an amendment relates back to an original cause of action in such a way as to -toll tbe statute against tbe amendment,' because at tbe time of tbe presentation of tbe proposed amendment tbe court bad no case Within its jurisdiction involving tbe 'merchandise covered by the entries. For. tbe foregoing reasons the motion to amend .will' be and 'the same is hereby denied in éacb case. It is so ordered.

429 U.S. 828

Sup. Ct. Pa. Certiorari denied.

38 Cust. Ct. 711

Johnson, Judge: This appeal for reappraisement has been submitted for decision upon the following stipulation of counsel for the parties hereto: IT IS HEREBY STIPULATED AND AGREED by and between counsel that the merchandise covered by the instant appeal for reappraisement consists of licorice tid bits exported from England. IT IS FURTHER STIPULATED AND AGREED that on or about the date of exportation there was no foreign, export or United States value, as those terms are defined in Section 402 (c) (d) or (e) respectively of the Tariff Act of 1930, as amended, for such or similar merchandise and that the cost of production as defined in subdivision (f) of said Section 402 was 102 shillings 6 pence per cwt. On the agreed facts I find the cost of production, as that value is defined in section 402 (f) of the Tariff Act of 1930, to be the proper basis for the determination of the value of the merchandise here involved, and that such value was 102 shillings 6 pence per hundredweight. (English currency.) Judgment will be entered accordingly.